Ghailani Could Still Get Life Sentence
By Lisa Brennan | November 19, 2010 12:25 pm

Drowned out in the debate over the lopsided jury verdict convicting Ahmed Khalfan Ghailani of only one count of conspiracy in the 1998 bombings of two U.S. embassies in Africa is a potential game-changer: a federal judge can, and likely will, sentence the former Guantanamo detainee to life behind bars.

On Wednesday, a Manhattan jury found Ghailani guilty on one count and acquitted him of the 284 other crimes he was charged with, including being part of a worldwide terrorism plot with Osama bin Laden.

U.S. District Judge Lewis A. Kaplan will sentence Ghailani on Jan. 25, and has the power to give him the same mandatory life sentence he would have received if the six-man, six-woman jury had found him guilty of any of the 224 murder charges of which he was accused.

Anthony Barkow (photo courtesy Juliana Thomas)

“People may be surprised you can be sentenced for things you’re acquitted of,” said former Southern District of New York prosecutor Anthony Barkow, executive director at Center on the Administration of Criminal Law at New York University Law School.

The U.S. Code of Criminal Procedure places “no limitation” on what information a federal judge can consider at sentencing. Some judges have interpreted this to mean they can enhance sentences for conduct of which a defendant was acquitted.

“Everyone now is talking about the significance of the verdict, but if Ghailani gets life in prison, that’s a very different debate than where we are at this point in time,” Barkow said.

Should Ghailani receive a life sentence, the government’s verdict likely will seem less hollow, he said. Ghailani would have received a fair trial, and critics of civilian trials can no longer complain that the judge’s exclusion of a cooperator’s coersion-linked testimony negatively impacted the government’s case.

More than that, a life sentence for Ghailani would in turn pave the way for the Justice Department’s plan to bring other Guantanamo prisoners to the U.S. for civilian court trials, said Barkow and another former prosecutor who handled complex terrorism trials. At least one case already is in pretrial motion:  the Nigerian man charged in last year’s Christmas Day airliner bombing attempt.

Ghailani was charged in the bombings of embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya, that killed 224 people, including 12 U.S. citizens, on Aug. 7, 1998. The Tanzania attack killed 11 people and more than 4,500 people were injured in both blasts.  Had he been convicted of any of the murder counts, Ghailani faced a mandatory life sentence. His conspiracy conviction will get him at least a minimum of 20 years in prison.

Before the start of Ghailani’s five-week trial, the government faced a major setback when Kaplan barred prosecutors from using a key witness because his identity was discovered when Ghailani underwent coersive interrogation techniques, what his defense lawyers have called torture. Early this week, a juror asked to be excused, saying she couldn’t agree with the other jurors. Kaplan denied her request and a defense request for a mistrial.

Prosecutors had their share of hurdles to surmount in “getting this case over the finish line — ranging from evidentiary and other legal issues to political issues,” said former SDNY prosecutor Christopher Morvillo, now of Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, P.C. in New York.

As he sees it, the verdict is a clear victory for the government.  “The bottom line for me is that Ghailani is likely going to jail for a long, long time and that has to be viewed, under all of these circumstances, as a law enforcement victory and a clear sign, warts and all, that the system worked,” he said.

Christopher Morvillo (Morvillo Abramowitz)

Neither Barkow nor Morvillo believe the outcome would be any better if  the case had been heard in a military tribunal.  Military judges typically are far less experienced with terrorism trials than SDNY judges and are not equipped to offer the full range of protections to defendants that civilian courts offer, according to Morvillo. For example, civilian courts require witnesses to provide live testimony to allow defendants a chance to cross-exam evidence. In military courts, witnesses are sometimes allowed to submit written statements.

Both civilian and military forums share all of the same evidentiary issues and proof problems, Morvillo said.  But proponents of the tribunals, he said, are advocating for a system that affords defendants “less protection than any other person whose liberty is at stake.”

“Remember, the events occurred 12 years ago and several witnesses have since died,” he said.  ”Likewise, in the hands of prosecutors, judges and defense lawyers with little or no experience with terrorism trials, I have serious questions as to whether the result would have been much different.”

Kaplan himself said he believed a military judge would have also excluded the cooperator’s challenged testimony. Critics of military commissions say the system typically produces shorter sentences than federal courts, in part because prosecutors want to avoid appeals.

Although Kaplan’s ruling on the witness’s testimony may have hurt the government’s case against Ghailani — Assistant U.S. attorney Michael Farbiarz called the cooperator, Tanzanian miner Hussein Abebe, a “giant” and “critical” witness — it wouldn’t be the first time expedient wartime measures have hindered DOJ prosecutions.

In December 2009, a federal judge in Washington D.C. threw out the government’s case against several Blackwater security guards accused of a 2007 shooting in Iraq that left more than 30 people injured or dead. The guards had already given testimony to the State Department under rules requiring them to give complete accounts or lose their jobs. The coercive factor meant prosecutors couldn’t use those statements, the judge ruled, severely limiting the government’s case.

In the Ghailani case, Abebe would have testified that he sold five tons of TNT to the defendant, which prosecutors wanted to use to show his intent to kill.  Without that testimony, prosecutors had to rely on circumstantial evidence.

“If anyone is unsatisfied with Ghailani’s acquittal on 284 counts, they should blame the CIA agents who tortured him,” the Center for Constitutional Rights said in a statement.

SDNY U.S. Attorney Preet Bhahara left no room for doubt that prosecutors will seek a life sentence for Ghailani. “Ahmed Ghailani will face, and we will seek, the maximum sentence of life without parole when he is sentenced in January,” he said. “I want to express my deep appreciation for the unflagging commitment, dedication and talent of the agents who so thoroughly investigated this case and the prosecutors who so ably tried it.”

Before dismissing the jurors Wednesday, Kaplan praised their efforts over the five-week trial that began Oct.12. He said they proved “that American justice can be delivered calmly, deliberately and fairly, by ordinary people — people who are not beholden to any government, including this one.”

Defense lawyer Peter Quijano told reporters after the verdict that his client’s 284 acquittals were a “reaffirmation that this nation’s judicial system is the greatest ever devised.”

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