Judge Denies Mistrial in Benghazi Bombing Case

WASHINGTON (CN) – A federal judge refused to throw out a Libyan man’s conspiracy convictions  related to the deadly 2012 Benghazi attacks.

This courtroom sketch depicts Ahmed Abu Khattalah listening to a interpreter through earphones during the opening statement by Assistant U.S. Attorney John Crabb, second from left, at federal court in Washington. (Dana Verkouteren via AP)

“The court is confident that any prejudice engendered by the government’s appeal to the jury’s sympathy for the victims did not affect its verdict,” U.S. District Judge Christopher Cooper wrote.

Convicted this past November after a seven-week trial, Ahmed Abu Khatallah sought a mistrial on the basis that prosecutors had prejudiced the jury with appeals to patriotism.

But Cooper found Friday that Khatallah’s 14 acquittals on the most serious charges strongly indicates that no prejudice occurred.

By contrast, Cooper wrote, “the counts on which [Khatallah] was found guilty … were all well-supported by the evidence at trial.”

Though accused of masterminding the bombings, Khatallah was convicted only of conspiracy to provide material support to terrorists, providing material support to terrorists, property destruction in connection with the U.S. diplomatic compound in Benghazi, and using a semiautomatic weapon during a violent crime.

Khatallah’s 14 acquittals meanwhile included charges related to the deaths of Ambassador Christopher Stevens and three other Americans. The jury also found no evidence tying Khatallah to an attack that occurred after the embassy bombing at a nearby CIA annex.

“Give the jury’s overall verdict and the evidentiary support for the counts of conviction, it is clear to the court that any improper attempts to elicit sympathy for the victims were futile or perhaps even counter-productive,” the 29-page ruling says.

Defense attorney Jeffrey Robinson with Lewis Baach declined to comment on the ruling.

Though Cooper ruled for the government Friday, he did agree with Khatallah that prosecutors did at points violate a procedural bar against statements that seek to arouse the “passions or prejudices of the jury.”

Khatallah’s defense team had objected in particular to the government’s repeated use of the word “our” to describe the diplomatic compound in Benghazi. Cooper said he ignored the references as innocuous at first, but later sustained defense objections and admonished prosecutors to refer to the compound as the U.S. mission, not “our” mission.

Prosecutors however carried on, with Cooper noting that “the cumulative effect of these references in the particular context of this case placed them over the line.”

The political firestorm surrounding the attacks, along with Khatallah’s foreign appearance and the seriousness of the terrorism charges he faced, made it especially important to ensure he received a fair trial “as free as possible of nationalistic and cultural biases,” the ruling says.

Cooper noted that the jury selection process focused heavily on identifying any such predispositions.

“But the government’s tactic risked undermining that groundwork,” the ruling says. “It did so by conveying the impression that the defendant was separate from the jury, the government, and even the Court. Unlike the victims, he is not one of ‘ours.’ He is not an ‘American son.’ Those are simply not appropriate sentiments for a jury to consider.”

But, Cooper noted, “the jury in this case did not rise to the bait.”

Khatallah had also objected to being referred to by prosecutor Julieanne Himelstein as “a stone-cold terrorist” during closing arguments, after she said he was “guilty as sin.”

Cooper had denied a pretrial defense motion to bar prosecutors from using terms like terrorism and terrorist on the basis that Khatallah had been charged with participating in a terrorist attack.

But he instructed the government not to use those terms gratuitously or unnecessarily, which he said the government largely abided by until closing arguments.

“To the court’s ear, this was not, as the government suggests, a reference to the terrorism-related charges that the defendant faced, but rather an appeal to ‘passion and prejudice’ associated with the ‘terrorist’ label,” the ruling says.

Though not enough to warrant a mistrial, Cooper said the government should not have made the remark.

Federal prosecutors declined to comment on the ruling. Khatallah will be sentenced on June 27 at 10 a.m.

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