The slant on embassy bombings verdict
One thing I learned during seven years as a reporter based in federal court was that for defendants, there is no such thing as a mixed verdict. The penalties and the judges imposing them were usually severe enough that a conviction on just one count was enough to ruin the defendant’s life.
I saw this most dramatically in the trial of a group of radicals charged in the early 1980s with a series of armed robberies, including a fatal assault on a Brink’s armored car. When the verdict at federal court in Manhattan showed that the jury rejected much of the prosecution’s case, a defense attorney shouted out jubilantly, “It’s a defeat for the government!” But not really – her client was later sentenced to 40 years in prison on the two counts the jury found the defendant guilty on.
Most news accounts of the verdict for Ahmed Khalfan Ghailani in the 1998 al-Qaeda bombings of two U.S. embassies in East Africa made the same mistake; they emphasized the acquittal and tended to overlook the implications of the conviction on one count of conspiracy. As a Washington Post headline put it: “Terror Detainee Largely Acquitted.” We’ll find out what being “largely acquitted” means when Judge Lewis Kaplan sentences Ghailani – who faces up to life in prison for his conviction for conspiring to destroy government buildings and property.
Bloomberg News got it straight by focusing first on the conviction on one count and then on the acquittal on 284 charges. The Wall Street Journal did the same.
But for the most part, major news organizations rushed to frame the verdict in political, rather than legal, terms. Fox News was first out of the gate, with Charles Krauthammer declaring moments after the verdict that “this is a huge embarrassment to the administration.”
That remains to be seen.
The outcome of the trial of Illinois former-Gov Rod Blagojevich may be another example. I believe the jury was hung on 20+ counts – all of them but one. Blagojevich has been crowing that this represents a huge vindication of his tenure as governor. However, that lone non-hung count was a conviction, for which, as I understand it, he could be sentenced to some real hard time. (In addition, the other counts will be retried, so he is not out of the woods on anything).
Btw – I’m really, really far from being a legal expert, but I’ve read that conspiracy, wire fraud and mail fraud are ‘catch-all’ charges that the Federal government counts on to secure convictions, because they can be so broadly construed and applied that most defendants trip over them, even if a bomb was never detonated nor a bank ever robbed.
The Republicans are already crowing about Holder’s “mistake” in using a civilian court. Nonetheless, the outcome would seem to be a vindication of balancing the defendent’s right not to have torture testimony used against him (as the judge ruled) with allowing civilian juries to weigh the evidence that was allowed. Would we be surprised if he got life?
“Would we be surprised if he got life?”
No, I wouldn’t, Peg. But will we be surprised if commentators treat that as a vindication of the Obama administration’s approach?
Jim Pauwels asks about federal laws … I am not a legal expert, either, but it is true that the conspiracy statute is a powerful tool for federal prosecutors. A conviction requires a finding that a defendant agreed to do something illegal.
Bringing hundreds of counts is a mixed strategy. On the one hand, it emphasizes the gravitas of the person’s misconduct and is a reasonably good way to maximize the odds that you get a conviction on something, on the other hand, it imakes it very difficult for the jury to focus the evidence on those counts that are the strongest, leading to verdicts like this one. Indeed, it wouldn’t surprise me at all if the jurors decided to go with the one count for which they thought the evidence was indisputable and stop worrying about the rest. I think the best summation of the situation, however, came from the wife of one of the victims, which was that the case would have been stronger if the defendant had been tried in 2004, when he was first brought into custody.
The other thing to remember about multiple counts is that they don’t always lead to longer sentences, because there is something called grouping, either by custom or even within the legal definition of the offense, which provides for a maximum penalty no matter how many instances of the count are alleged. So if I am accused of 25 counts of mail fraud, getting convicted on two or three is probably going to give me as much jail time as being convicted on many more. On the other hand, being convicted of more counts can result in a judgment requiring a higher level of restitution (which is usually no more than a rhetorical victory, since most defendants are impecunious).
My guess? The judge will sentence him to the upper, not the lower, end of what is permitted, simply in light of the number of people who died and the amount of the eventual destruction. But I know nothing at all about the judge. He seems to have given both the defense and the prosecution favorable rulings during the case.
I wonder if the typically harsh sentences by federal judges are the grounds of the ordinary language warning, “Don’t make a federal case out of it”.
Don’t the federal laws require certain minimum penalties for some crimes?
There was a story about this in the New York Times. Apparently, there was an expectation that the defendent would be able to forward issues of being detained at GIYMO, interrogation techniques, etc. That did not happen as the government brought forth evidence obtained outside of that process and the judged ruled as inadmissable those other issues.
The point is that the civilian trial, according to the journalists, was able to obtain the same outcome the government wanted. However, what it could not do was to try by implication the process of Gitmo, interrogation, etc as evidence obtained from those interrogations were not submitted.
The issue of delay which would have been an oblique way of bringing in Gitmo was also denied.
Still, it does APPEAR like this is a very weak conviction.
When KSM is tried, that will be very, very interesting as press attention will be magnified. It will be like the OJ trial on steroids.
Let’s see what the Obama administration decides.