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Jury may have doubted key Mumbai attacks witness

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SOPHIA TAREEN | June 10, 2011 07:01 PM EST | AP

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CHICAGO — Five days of testimony from the government's star witness in the trial of a Chicago businessman accused in the deadly 2008 Mumbai attacks provided a rare glimpse into the inner workings of a Pakistani militant group and its suspected ties to the country's main intelligence agency.

But jurors' split verdict in the case suggests they didn't always take David Coleman Headley – an admitted terrorist with a troubled past – at his word, underlining the difficulties federal prosecutors face winning complex terrorism cases that involve questionable cooperating witnesses and a complicated web of terror networks.

"Jurors are always looking for corroborating evidence," said former U.S. Attorney Paul Charlton. "Mr. Headley avoided the death penalty and it's understandable that jurors would want evidence that his testimony was independently confirmed, but didn't find it."

After two days of deliberations, jurors cleared Tahawwur Rana, a Pakistani-born Canadian, of any involvement in the three-day siege that has often been called India's 9/11. He was convicted of two lesser charges: providing material support to the terrorist group, Lashkar-e-Taiba, which was blamed in the attacks, and in a plot that never was carried out against a Danish newspaper that in 2005 printed cartoons of Prophet Muhammad. He faces up to 30 years in prison on the two charges.

Though defense attorneys called it a "conflicting decision" and planned to challenge the verdict, experts say the jury's split ruling isn't wholly surprising, especially because so much of the trial focused on Headley's testimony.

The 50-year-old American Pakistani pleaded guilty to laying the groundwork in the attacks on Mumbai and conducting surveillance in Copenhagen. He agreed to testify against his school friend Rana to avoid the death penalty and extradition.

Those facts probably weren't lost on jurors, who heard defense attorneys chip away at Headley's credibility for days, portraying him as a manipulator, who lied to FBI agents and the judge and worked as a Drug Enforcement Administration informant to get lighter sentences after two heroin smuggling convictions.

Experts said the evidence in the Denmark plot seemed easier to verify independently of Headley, who spent days on the stand detailing in emails, recorded conversations and testimony how he worked for both the Pakistani intelligence agency known as the ISI and Lashkar. His testimony took up more than half the trial, and had been highly anticipated worldwide after Osama bin Laden was found hiding out in a military garrison town outside of Islamabad. The trial fueled fears that could put pressure on the already frayed U.S.-Pakistani relations and inflame tensions between Pakistan and India.

Prosecutors presented Rana's videotaped arrest statement to the FBI where he said he knew Headley had trained with Lashkar. They also played a September 2009 recorded phone conversation between the men where "targets," including the Danish newspaper, were discussed.

But when it came to the Mumbai accusation, evidence either originated from Headley or one of the other six Pakistani men charged in absentia in the plot.

Seth Jones, a RAND Corp. political scientist, said it is generally easier for the government to prove that somebody is supporting a group than helping in a plot.

"Headley did not appear as crucial as the government had hoped in prosecuting Rana," Jones said. "There just was insufficient evidence to support his direct involvement in the Mumbai attacks."

Rana was accused of allowing Headley to open a branch of his Chicago-based immigration law business in Mumbai as a cover story and travel as a representative of the company in Denmark. In court, a travel agent showed how Rana booked travel for Headley and prosecutors showed emails from the Danish newspaper.

The Indian government expressed disappointment with the jury's ruling and said it would examine the verdict and evidence to decide whether to formally charge Headley, Rana and others in its own investigation into the Mumbai rampage, which left more than 160 people dead.

"When Rana has been held guilty of assisting the Lashkar -e-Taiba and guilty of supporting terrorist acts in Denmark how have they separated him from the Mumbai attacks?" said Ujjawal Nikam, the special public prosecutor in the Mumbai attack trial in India. "It appears that there are some apparent contradictions in this verdict."

Still, the split verdict was considered at least a partial win for the Justice Department, with U.S. Attorney Patrick Fitzgerald calling it a clear message to "all those who help terrorists."

Headley's testimony may not have been enough to convict Rana in the Mumbai attacks, but it might have been the only shot prosecutors had, said Pat Rowan, the former head of the Justice Department's national security division.

"There's a lot of individuals out there who are cooperators, and they have a lot of baggage, and you're not really sure how they'll come across when they testify," Rowan said.

Roy Black, a high-profile Miami defense attorney, said the benefit to using a cooperating witness, such as Headley, is that the prosecution has someone who can tell the entire story, and then the jury can parse out what they believe.

Jurors weren't available to explain their verdict. The names weren't released due to the sensitivity of the case, and they declined to speak publicly. The only hint of what was being discussed during deliberations is the one question they had about the affiliations of two other men charged in absentia in the case. The judge directed them to look at the evidence.

"It's not uncommon for juries who think it was a close case to want to show how close they thought it was by dividing up the counts and finding people guilty of one and not the other," said Stuart Baker, a former senior Homeland Security official and former general counsel of the National Security Agency.

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Associated Press writers Eileen Sullivan in Washington and Muneeza Naqvi and Ashok Sharma in New Delhi contributed to this report.

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Sophia Tareen can be reached at http://twitter.com/sophiatareen