New Terror Trial Looks Unlikely for Ghailani

MANHATTAN (CN) - U.S. District Judge Lewis Kaplan heard, and pointedly criticized, arguments Thursday morning for a new trial or full exoneration of Ahmed Khalfan Ghailani, convicted of only one count of the 285 charges against him in connection to the bombings of two U.S. Embassies in Africa. The coordinated blasts killed more than 200 and injured thousands on Aug. 7, 1998.

Ghailani, who was arrested in Pakistan in 2004, spent years in secret prisons before being transferred to Guantanamo Bay. Now being held in the Manhattan detention center, Ghailani was the first former Guantanamo detainee to be tried in civilian court.

In court on Thursday, defense attorney Michael Bachrach reiterated arguments that he wrote in Ghailani's motion for a new trial or full acquittal. The document argued that the jury delivered an inconsistent verdict, that the judge gave jurors an improper instruction and that one of the prosecutors made "disingenuous" arguments during closing arguments that amounted to "false evidence."

Bachrach opened his remarks by saying that jurors acquitted Ghailani of every conspiracy and murder charge related to the bombings, and that the one guilty count - conspiracy to destroy U.S. property - referred broadly to bombings of U.S. facilities "anywhere in the world."

Since the government did not allege that Ghailani had any connection to a different bombing, the defense argued the conviction count should be dismissed as a "matter of law."

Kaplan quickly shot down the contention.

"I don't see any way that argument can stand," Kaplan said, adding that the Supreme Court has ruled that "not guilty" does not mean that the jury has established a fact, but only that "the jury has said no."

Bachrach said that the inconsistency of the Ghailani verdict rises to the level of one of the few exceptions discussed in a 2nd Circuit precedent.

"This is a split verdict unlike we've ever seen in this district before," Bachrach said.

"You're younger than I am," Kaplan replied, prompting laughter in the courtroom.

The judge also appeared unconvinced by the defense's arguments that he erred in providing jurors with an instruction on the concept of "conscious avoidance," which states that deliberately avoiding knowledge about an illegal conspiracy is tantamount to joining one.

The day before the verdict was announced, jurors asked Kaplan to clarify an aspect of this concept.

While Kaplan's instructions had been "completely accurate" as a "statement of law," the defense argued, the instruction was unwarranted in the absence of "red flags" suggesting that Ghailani knew - or avoiding knowing of - a conspiracy to bomb the U.S. Embassies.

In its opposition to the defense's motion, the government wrote that "'red flags' were everywhere to see."

Kaplan appeared to take the same position on Thursday, noting that Ghailani lived in a room with an al-Qaida trainer, bought a truck that he could not drive and purchased gas tanks for which he had no personal use.

"Gee, I wonder if that's a red flag," Kaplan said.

Bachrach acknowledged that there were red flags of "general illegality," but he said that there were none specifically pointing to the bombings of the embassies in question.

"Maybe the Swiss Embassies?" Kaplan asked.

Moving on to his last argument, Bachrach objected to a line in a federal prosecutor's rebuttal summation.

At the time, Assistant U.S. Attorney Michael Farbiarz said, "No dupe stays silent in the face of being involved in this type of thing."

The defense claims that the argument was "disingenuous" because the government knew of other dupes like Hussein Abebe, who did not talk to the government for years after the attacks even though he sold the explosives used in the bombings.

Kaplan had barred Abebe before the trial from testifying for the government, on the grounds that the government learned about him through Ghailani's alleged torture in secret prisons, making the witness inadmissible under Fifth Amendment protections against self-incrimination.

At the hearing Thursday, Kaplan said that he did not find anything wrong with Farbiarz's argument, and that Ghailani was more intimately involved than Abebe.

The government initially declined to make any additional comments until Kaplan pressed Farbiarz to reply to specific points in the defense's motion.

Farbiarz cited the same the "red flags" cited by the judge and added some of his own. He also said that legal precedent holds that evidence supporting "red flags" must be weighed in favor of a conviction.

Under U.S. v. Powell, there is "no exception to the Dunn rule," which allows inconsistent verdicts to stands, the prosecutor said.

Bachrach replied that Powell makes specific reference to "few exceptions."

Kaplan said that it could be argued that an inconsistency in the verdict, if one exists, could be the acquittals, rather than the conviction count.

Although Bachrach said he could agree with such an argument in theory, he said that Ghailani's 284 counts of acquittal and one conviction suggest the opposite.

Kaplan said that jurors could have theoretically struck a "bargain" with a solitary holdout "so everyone could go home," and asked Bachrach if he would ask for a new trial on all 285 charges against his clients to determine the source of the argued inconsistency.

"I'd rather avail myself to the Federal Rules of Criminal Procedure," Bachrach said.

Kaplan replied: "I thought so."

The judge said he will reach a decision either tomorrow or early next week. If he denies the motion, sentencing will occur on Jan. 25. The conspiracy count of which Ghailani was convicted carries a minimum 20-year sentence, and Ghailani could face up to life imprisonment.

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