THE BLOG
01/20/2011 12:15 pm ET Updated May 25, 2011

Judge Appears Skeptical of Former Gitmo Prisoner's Appeal

See update below.

Although Ahmed Ghailani's lawyer on Thursday made a valiant effort to argue that his client's conviction in November should be reversed, he will have an uphill battle convincing a very skeptical federal judge.

Defense attorney Michael Bachrach argued strenuously in federal court on Thursday that the verdict should be reversed because it was inconsistent: Ghailani was acquitted of 284 counts, including conspiracy to bomb the U.S. embassies in Tanzania and Kenya, but he was convicted of one charge: conspiracy to destroy U.S. property. But the only U.S. property addressed at trial was those two embassies, which were bombed in 1998. Four other co-conspirators have already been convicted and are serving life sentences for their roles in the crime.

Judge Lewis Kaplan, who presided over the 5-week Ghailani trial in the downtown Manhattan courthouse, seemed skeptical. "I don't see any way that argument can stand up to the Supreme Court," he said, noting that "over and over again" the Supreme Court has ruled that inconsistent verdicts are not grounds for reversal. As Kaplan put it: "Juries sometimes acquit when under the law they have no right to do so."

Indeed, a jury verdict is essentially sacrosanct in the United States legal system. It is nearly impossible to overturn, even if it seems illogical, unless a judge finds that there was really no evidence to support it. That's clearly not what Judge Kaplan believes in this case.

Judge Kaplan noted repeatedly the "red flags" that could have led jurors to believe Ghailani knew he was participating in a conspiracy to bomb U.S. embassies, such as evidence that Ghailani purchased gas tanks, although they had no evident connection to his work in a children's clothing store; he bought a truck, although he could not drive; he shared a room for months with an al Qaeda trainer intimately involved in the conspiracy; and he had bomb detonators in his armoire. As federal prosecutor Michael Farbiarz pointed out, under U.S. federal law, "all reasonable inferences need to be drawn in favor of conviction."

Judge Kaplan seemed to agree, and repeatedly told Bachrach that he didn't understand his argument. "I hear the notes but the tune's not there," he said at one point.

Bachrach was essentially arguing for an exception to the Supreme Court rule that courts may not reverse inconsistent jury verdicts. He argued -- quite creatively -- that the one count on which Ghailani was convicted (Conspiracy to Destroy Buildings and Property of the U.S.), included U.S. property anywhere in the world, not just the U.S. embassies in Kenya and Tanzania. Because Ghailani was acquitted of conspiracy to bomb those embassies, he argued, the government was required to put forward some evidence that Ghailani was conspiring to bomb some other U.S. property, for that count to be distinguishable from the others. Otherwise, the count is redundant and impermissible. Because the only conspiracy addressed at trial was the one to bomb the two East African embassies, Bachrach reasoned, there simply was not enough evidence to support the guilty verdict reached on Count 5.

Bachrach also argued that the judge was wrong to instruct the jury that they could find Ghailani guilty if he was guilty of "conscience avoidance" -- that is, intentionally avoiding the fact that he was acting as part of a conspiracy to bomb the embassies.

Despite the defense lawyer's best efforts, the judge seemed unconvinced. "Isn't a jury entitled to apply a little common sense?" Judge Kaplan asked, adding that the jury need not explain its verdict, or its logic in arriving at it, to the court.

"It may be that what you had was a bargain," Judge Kaplan said, speculating (perhaps based on news reports) that 11 jurors might have voted to convict on all counts, but there was one holdout. So it's possible they agreed to a compromise: convict Ghailani on only one charge. While that may lead to a seemingly illogical outcome, it's not impermissible in the federal court system, where criminal convictions are almost never overturned.

Judge Kaplan promised to issue his ruling tomorrow or Monday. Ghailani's sentencing hearing is scheduled for Jan. 25. He faces 25 years to life in prison.

Update, January 21, 2011:

As predicted, Ahmed Ghailani's conviction was upheld Friday morning by a federal court judge in New York.

Judge Lewis Kaplan issued this 56-page opinion explaining why he's convinced there is sufficient evidence to support Ghailani's conviction on one count of Conspiracy to Destroy Government Property, and why there were no errors at trial that prejudiced the jury against the defendant.

Since the terrorist attacks of September 11, 2001, more than 400 people have been convicted on terrorism-related charges in U.S. federal courts. Only five have been convicted in military commissions, which may well be unconstitutional. For some inexplicable reason, the Obama administration intends to resume prosecutions in the Guantanamo Bay military commissions.