MANHATTAN (CN) – U.S. District Judge Lewis A. Kaplan on Monday denied a defense motion for a mistrial in the case of Ahmed Khalfan Ghailani, accused in two U.S. Embassy bombings in Africa. Attorney Steve Zissou sought a mistrial after a juror said she had been “attacked” for a “conclusion” she had reached during deliberations. But Judge Kaplan replied there was “no colorable argument in favor of it … remotely,” and denied the motion.
Ghailani, the first Guantanamo detainee to face a civilian trial, is accused of conspiring and participating in truck bombings of U.S. Embassies in Tanzania and Kenya that killed more than 200 people and injured thousands on Aug. 7, 1998.
Just before lunch recess Monday, both parties gathered to discuss a note submitted to Judge Kaplan.
“Your Honor,” wrote the anonymous juror, “I feel am been [sic] attacked for conclusion [sic].” Since she felt her “conclusion” was “not going to change,” she asked to be replaced by an alternate juror.
The defense did not consent to the substitution, the juror’s request was denied, and the jury was reminded to be impartial, respectful and independent before being excused for lunch.
After recess, the defense and the government submitted letters and motions to the judge, who calmly rebuffed both.
After the denied motion for mistrial, prosecutor Michael Farbiarz asked to make an inquiry with the holdout juror, saying her letter indicates that she’s thinking, “I don’t really care. I just want out of here.”
Zissou said her note “clearly” indicated she felt intimidated. “She wants to be excused because she’s being attacked for her views,” Zissou said.
“This is a juror who made it through [the trial] all the way to today,” Zissou added, saying that pressure from the other 11 jurors may “eventually get her free will worn down.”
Judge Kaplan replied, “I understand the word ‘attack’ is in there,” but said he saw no evidence she was being hit or threatened. Kaplan “suggested” that members of the Supreme Court “attack” each other, too.
Zissou replied that citizen jurors are not as thick-skinned as Supreme Court lawyers and judges. He said the juror was “being attacked for her lack of unanimity” and asked the judge to “make sure it is not coercive.”
Asking how the court could gauge the pressure on juror while denying the government’s motion to make an inquiry, Judge Kaplan asked, “What do you want to do, get a Ouija board?”
At the end, Kaplan urged calm and patience, pointing out that the case is more than 2,200 pages long and includes “hundreds and maybe thousands” of exhibits.
“To expect unanimity in this short of time is not realistic,” Kaplan said. “Let’s just see what happens. Time is a great thing. Many things happen over time, including unanimous verdicts.”
Ghailani faces life imprisonment if he is convicted, and Judge Kaplan noted that he may be held as an enemy combatant even if he is acquitted.