Thursday, November 18, 2010

See? Civilian Trials Do Work.

The Holder Justice Department has proven its mettle. They told us that civilian trials for terrorists were a good thing, and that they were absolutely sure they could get convictions. And by God, they were true to their word. On Wednesday, a civilian jury convicted former Guantanamo detainee Ahmed Khalfan Ghailani of conspiracy to destroy buildings and property belonging to the United States. Victory is ours!

Or is it? Ghailani was convicted of a relatively minor felony, and will face sentencing of a minimum of twenty years (much of which will not be served in prison). How did Holder's boys do on this case? Well, they got a conviction on 1/285th of the charges against Ghailani, which included 224 murder counts. That's a rate of 0.3%. And the Holder boys argued the case so well, including jury instructions, that the dumb-ass jury was able to conclude that Ghailani conspired to commit mass murder and mayhem, but didn't know enough of the details to be convicted of any of the results of those conspiracies.

Ghailani, who is an enemy combatant, was involved in the Dar es Salaam bombing in Tanzania (his home country) and the US Embassy bombing in Nairobi, Kenya (Obama's home country?). In total, 224 humans perished, including 12 American citizens. Over 4,500 people were seriously injured. If Ghailani had been convicted of one--just one--of the murders, he would have been facing a life sentence.

And the Holder boys were really good at judge shopping. They found the most liberal non-constitutionalist "make it up as you go along" judge available at the time. You might be able to guess where the judge is coming from based on his expression of gratitude to the jurors. Normally, a judge says something like "the jury is thanked and excused from further duty." In a particularly knotty case, the judge might also thank them for their patience and attention in such a difficult matter. That wasn't enough for US District Judge Lewis Kaplan in the matter of this Manhattan jury. Said Kaplan: "You deserve a lot of credit. You have demonstrated also that American justice can be delivered calmly, deliberately and fairly by ordinary people--people who are not beholden to any government, including this one."

I'll sleep better at night knowing that. How about you? This ass-hat not only thanked the jury, but got a chance to take a slap at the American people, common decency, clear evidence, and the amateurs who "prosecuted" the case. I do have to admit that this was a result of Biblical proportions. In my busy criminal defense practice I never got a not guilty verdict on 284 out of 285 counts in any case. In fact, I'm not sure I got 284 not guilty verdicts in my first ten years of practice, and I had one of the best defense records in a very pro-prosecution county.

Even on the facts, evidence and testimony the jury was allowed to hear, there should have been guilty verdicts for at least 224 of the counts simply because of their finding of guilty on the conspiracy charge. But the defense argued so well, and the prosecution prepared so poorly that the jury was left with the idea that a conspirator who knew all the details that formed the conspiracy didn't contemplate the bloody deaths the conspiracy would produce. Shades of Lee Harvey Oswald, they bought the defense argument that Ghailani was merely a patsy. And based on lousy jury instructions, they believed that a dupe couldn't be guilty of mass murder (if he was actually a dupe at all).

But they didn't get to hear extremely damning evidence and testimony that tied him not only to the conspiracy, but to active participation in the actual carrying-out of the plots. That was because a liberal judge, following the liberal line of civilian jurisprudence, excluded the testimony of an interrogator who had used enhanced interrogation techniques which were both legal and acceptable at the time of the interrogation. But we civilians are so damned civilized that we must recoil in horror at a little rough interrogation while "finding the best" in mass murder. That's the American way. Aw, hooey!

Without objection from the "prosecutors," Kaplan instructed the jury that Ghailani had to be proven to have known "at least one of the unlawful objectives of the conspiracy," and that they must also find that "prosecutors proved the defendant voluntarily and intentionally participated in the venture as something he wished to do." The latter half is not a standard jury instruction, and the "prosecution" should have demanded an instruction that if the jury found that the defendant entered knowingly into the conspiracy, then ipso facto they must find him guilty of the acts in furtherance of the conspiracy--in other words, the murders. Only an idiot would believe that if you conspire to place explosives in heavily trafficked or highly-populated locations, multiple deaths will not ensue.

And the "intent" was not properly instructed on. One need not intend consciously to kill large numbers of people by setting off huge explosions. This is what is called "implied malice" or such a reckless and wanton disregard of the consequences of the intended act as to rise to the level of intent to kill. Planning on blowing up a rural post office where the plotters thought there would be nobody in the building at night has been found to be murder, even though all that was "intended" was a political protest. A trio of drunks were found guilty of murder for firing rifles into the windows of a moving passenger train "just for the fun of scaring people." The intent was to scare, the result was two deaths, and the conviction for murder was upheld.

With the help of the judge's instructions and the lethargy of the "prosecutors," the jury found the terrorist guilty of the conspiracy to "blow up buildings" during business hours, but couldn't make the connection to the unlawful homicides with the malice aforethought that went with that conspiracy. I've seen tougher judges and more competent prosecutors in municipal court cases where the charge was accessory to a trespass. A foul and inhuman mass murderer has been given a slap on the wrist for 224 human deaths. The deaths of people literally blown to pieces or so horribly maimed and injured that they didn't survive surgery and the best efforts of the medical profession.

Would the result have been any different in a military tribunal? The answer to that is about 99 and 44/100ths percent "yes." The testimony and evidence produced by the government interrogator would have come in. No touchy-feely "we're too civilized for that" crap, since the interrogation was both legal and commonplace at the time. No Obama-like sympathy for the "victim" (who is actually the perpetrator) and the "rule of law" which most assuredly was not the rule of law at the time of the interrogation. Kaplan applied current interrogation rules foisted on the military and intelligence agencies by the Obama-Holder deadly duo to an event that occurred long before those rules were imposed.

In addition, there was considerable "top secret" information which could have been used in the military court, but was not presented in the civilian trial since nobody from the judge to the court stenographer can be trusted to keep a secret for more than three minutes. We'll probably never know how damning that evidence would have been. Still it's likely a very safe bet that the testimony would have established a pattern of action (modus operandi) in multiple related matters that would tie the defendant directly to both conspiracies that worked and conspiracies thwarted because of the evidence obtained.

In case you're interested in the testimony that was suppressed, one of the "prosecutors" tried to call Hussein Ababe as a witness. Judge Kaplan would not allow the testimony in because Ababe, who admitted to selling five crates of TNT to Ghailani just before the Dar es Salaam attack was first named by Ghailani during an enhanced interrogation conducted by the CIA. The cocksure "prosecutor" had called Ababe a "giant and critical witness who would tie Ghailani directly to the murders and prove Ghailani's guilt beyond a reasonable doubt." After fumbling the motion to suppress, the "prosecutors" were left with a moderately strong but almost entirely circumstantial case.

So now we're left with an Obama administration that wants to close Guantanamo and a Holder Justice Department that could best be described as the gang that couldn't shoot straight. Dismissing the Black Panther voter intimidation cases was a political disaster and a miscarriage of justice. But at least nobody was actually maimed or killed. Blowing a case of mass murder because of the arrogance of an incompetent Attorney General who is too good to try cases in a military tribunal is the worst kind of dereliction of duty. Holder should get his walking papers before a liberal civilian judge and twelve morons convict Khalid Sheikh Mohammed of conspiracy to litter while dismissing all terrorism and murder charges against him in his 9/11 trial.

28 comments:

Joel Farnham said...

LawHawk,

Can Holder be tried for incompetance?

This was predicted time and again, and yet they persist. I reserve some anger for Holder, but most of my anger is directed at Obama for this travesty of justice. Too bad we can't impeach for that.

ArmChairGeneral said...

Joel it was an executive order that Holder is not responsible for anything that is done by his department or in his name. It was the second directive Obama issued after he decided to go for coffee.

BevfromNYC said...

Want to take bets on whether KSM will be tried in a civilian court now? Holder will decide next week. At least that's what I've been reading in the local papers.

But how is he responsibly for helping bring down the buildings, but not the least bit responsible for killing the people inside the buildings. I know you explained it, but I can't wrap my mind around any logic.

Do you think an appeal will overturn the conspiracy conviction?

LawHawkRFD said...

Joel: Unfortunately, we can't get rid of him that way. Obama might decide this was one blow too many and ask him to leave, or Holder could just quit before the new Congress starts looking into his multiple failures and misuse of the office.

LawHawkRFD said...

ACG: That sounds too much like the truth. Was that when Obama went for coffee in India?

Tennessee Jed said...

Hawk - as an old Chicagoan, you will appreciate how much this smells like the black sox scandal of yore.

LawHawkRFD said...

Bev: So far, all I've heard is that Holder has been considering where to hold the KSM trial. He doesn't want to have military tribunals, so maybe he'll fly a civilian jury to Guantanamo for the trial. I have no idea what the idiot's going to do next, but whatever it is, I'm sure it will be politically-expedient and probably stupid at the same time. He certainly won't admit he made a mistake.

An appeal is always possible, but an appeal based on inconsistency of judgment is rarely granted. The poor benighted dupe will have to serve his time at a club fed of his choice.

LawHawkRFD said...

Tennessee: It does sound familiar, except in this case there's no Shoeless Joe to make the story poignant.

T_Rav said...

LawHawk, I would caution that we don't have all the facts about the trial yet. Maybe they determined that it was society's fault, or his mother didn't hug him enough, or he was framed by a Western-imperialist conspiracy, or...something.

BevfromNYC said...

IF the KSM trial is held in NYC, even Mayor Bloomberg might object though it's hard to say what Mayor Mike will do or say. Sometimes he likes us, but most of the time I sure he think that if we would all just go away, his job would be so much easier. You know, no one to eat the wrong stuff, or smoke, play load music, or God forbid, use a salt shaker. I mean seriously, WHO thinks that bake sales at schools could be so detrimental?? And thank God I have a passport otherwise I would be counted amongst the ranks of the ignorant rabble...

Okay, end of Bloomberg rant...

rlaWTX said...

T_Rav, I'm very sure that civilized society let this poor man down - to the point that he was forced to befriend some other poor people, equally mistreated, who planned to do some awful things, only because they are oppressed, but he never meant for the awful things to actually HURT anyone, even though by carrying them out exactly as planned injury and death were unavoidable.
[blech, my fingers feel dirty from typing that!]

LawHawkRFD said...

T_Rav: I'm with you. I'm really tired of criminal trials sounding more like group therapy sessions than determination of whether somebody is guilty or not.

LawHawkRFD said...

Bev: I'm pretty sure they won't hold the trial in NYC. Bloomberg wants to be elected mayor-for-life, and that wouldn't help. And Holder knows the New Yorkers might just take the trial out of his incompetent hands and execute a little street justice.

LawHawkRFD said...

rlaWTX: I hadn't thought of it that way. I needed my feminine side brought out. Let's all petition the court to let him out so we can show him a little love. LOL

LawHawkRFD said...

T_Rav: I was thinking of the SyFy Channel. This reads like science fiction.

StanH said...

Incredible, put predictable. These are the admonitions that you warned about in earlier posts. And here we are, Eric Holder and his Dunce Brigade making us better people in the eyes of the world…barf. Man, we are in heap big trouble until we can get Barry and the traveling circus the hell out of Washington.

wahsatchmo said...

LawHawk:

First, thanks for laying this out. I saw the headlines and thought, "That seems par for the course for Holder" without really looking at the details before I read your synopsis.

But Holy God, once I see the disgusting incompetence of the prosecution failing to object to biased jury instructions and failing to object to the choice of judge in the first place, I just want to vomit.

How dare a judge praise a jury for finding a mass murderer "kinda sorta guilty of mass murder, but he didn't know if it was really wrong." A fair judge would have berated the prosecution for failing to perform their duty on behalf of the American people. But this obviously wasn't a fair judge.

LawHawkRFD said...

Stan: Thanks. Sometimes I felt like a voice crying in the wilderness. Nobody much likes Holder (except Obama and a few leftists), but I've been trying to wake people up to just how vicious and incompetent this clown really is. Like Obama, he has an ideology. Facts and evidence, and the will of the people have absolutely no effect on him. His arrogance and confidence in his own brilliance is matched only by his boss's. His clear racial sympathies cloud every decision he makes. I question his loyalty to the United States in much the same manner as I question Obama's.

AndrewPrice said...

I was not surprised when the acquittal was announced. It's clear that Team Holder is not up to the task of prosecuting these things, and frankly, they shouldn't even be prosecuting these things -- these are not civilian matters.

LawHawkRFD said...

wahsatchmo: Some of the prosecution team were career attorneys, but few had the guts to stand up to the political appointees that Holder and Obama have them working for. Remember that only two career DOJ attorneys spoke out against Holder's dismissal of the Black Panther cases. One quit and went public, and the other got exiled to legal Siberia.

Holder put his show prima donnas in charge of the case, and made it clear that any career attorney who opposed their tactics would soon find himself as the low man on the totem pole in the Guam division. Combining their sympathy for Muslim terrorists with their unearned arrogance, and throwing in the determination that wartime terrorists should be treated as common criminals along with their distaste for the honorable men and women in the military, this verdict was almost a foregone conclusion. We're probably lucky they convicted the SOB on even one charge.

LawHawkRFD said...

Andrew: When I first started out, we had one attorney working in the office who was the butt of many jokes. They used to kid that he was the only lawyer in the firm who could blow a default. Next to the Holder legal beagles that guy looks like Clarence Darrow. And even he wouldn't have been idiotic enough to dismiss default judgments that he had actually won.

ArmChairGeneral said...

Lawhawk yes also I started my own political blog. Now I have a gaming blog and a political blog. It's called Logical Freedom.

Individualist said...

Lawhawk

I am not sure if Obama had coffee in India but hey we know it was not Tea, dont' we.........

What scares me most is that if this is the MO, civillian trials, we will start seeing threats from Al Queada on the lives of Jurors. Even if it is after the fact it will make the point for the next trial. This is war and the enemy seems to have fully embraced the All is Fair part of the old saying. This is just worng on so many levels.

LawHawkRFD said...

Individualist: Everything you say is true. I've already seen two lawyer-politicians discuss the case. The leftist thought that the deck was stacked against the terrorist and he should have been found not guilty on all charges. He has also made statements in the past that it was odd that so many of the judges are Jews, but denies that he's antisemitic. But he still argued that if the judge hadn't been prejudiced against this poor innocent Muslim, he wouldn't have allowed a trial in the first place.

The "moderate" says that the scumbag will spend much of the rest of his life in prison, so justice was done. Has the world gone completely crazy?

Expect a media blitz from CAIR saying "the system works." And as for your idea that a present or future jury can be threatened or intimidated by terrorist agents, I wholly agree. That is another thing that can be eliminated by military tribunals held at Guantanamo.

Anonymous said...

Another good one Lawhawk. This just makes me sick.

Also, let's not forget that they announced that they would find KSM guilty and would see him executed. How's that going to work with all those bleeding hearts that are going to claim that he won't be able to get a fair trial? Unbelievable!

TJ

Tehachapi Tom said...

Hawk
I must be dense because it is beyond my feeble understanding why our justice department(no caps because they don't rate the respect)had to break with tradition and try these idiots in one of our civilian courts.
I have always thought our civilian courts are for our citizens not some tin pot country's dregs. How can anyone construe our courts should be used to try some non citizen for any offense committed out side of our borders?

Please make the answer simple.

LawHawkRFD said...

Tehachapi Tom: I have no problem keeping that answer simple. Obama and Holder are leftist ideologues. Leftist ideologues don't believe in war. Therefore those who are enemy combatants can't be enemy combatants. They must be simple criminals. Ergo they must be tried in civilian courts.

Tehachapi Tom said...

Hawk
Not being an erudite law type I can only say B.S. There is a requirement for right and when we have clowns making wrong decisions that undermine the basic tenants of our Constitution they need to be brought under control. Preferably elections are the method but if that cannot be accomplished our founding fathers provided alternative procedures.

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