Suleiman Abu Ghaith and Khalid Sheikh Mohammed (Reuters)
Southern District Judge Lewis Kaplan (See Profile) decisively rejected Tuesday the attempt of lawyers for Sulaiman Abu Ghayth to introduce at trial statements from imprisoned al Qaida terror plotter Khalid Shiekh Mohammed.
At a morning hearing, Kaplan denied the motion of defense lawyer Stanley Cohen to have the Abu Ghayth jury see a written submission from Mohammed sent from his cell in Guantanamo Bay.
Cohen had argued Mohammed’s written answers to questions submitted by the Abu Ghayth defense team provided evidence exculpatory to his client, but Kaplan disagreed.
“This is much ado about nothing, there is nothing here, it is not admissible,” Kaplan said.
Cohen submitted the 14-page statement by Mohammed on Sunday and prosecutors fired back in a memo on Monday, saying the answers came too late in the day and were, in any event, immaterial to the trial.
Kaplan chastised the defense team, saying “they sat on their hands from July 2013 to December 2013″ before asking for access to Mohammed at Guantanamo, and then, as jury selection neared, shifted from requesting a personal interview with Mohammed to submitting written questions.
“Too little, too late, it’s not here, it’s denied,” Kaplan said.
The hearing came during a one-day break in the trial of Abu Ghayth, who faces life in prison for an al Qaida conspiracy to kill U.S. nationals anywhere in the world, conspiracy to provide material support and resources to the group and a substantive count of providing material support and resources.
Abu Ghayth, a son-in-law of Osama bin Laden, is accused of recruiting fighters to the al Qaida cause and is shown on videotape after Sept. 11 terror attacks vowing that the “storm of airplanes” would continue.
Southern District Assistant U.S. Attorneys Nicholas Lewin, John Cronan and Michael Ferrara, who completed their case on Friday, are trying to show Abu Ghayth was out front as a propagandist for al Qaida, and issued the “storm” statement and other incendiary videos while the al Qaeda shoe bombing plot was in full swing.
Cohen and fellow defense lawyers Zoe Dolan, Ashraf Nubani and Geoffrey Stewart are in the middle of presenting a pared down defense consisting of four witnesses as they try to win an acquittal in a trial that began with a picture of Abu Ghayth seated at the right hand of bin Laden with two other top-level al Qaida figures.
Mohammed’s answer to the 451 questions submitted by the defense began with a statement on the history of the conflict and included what Cohen said were four or five exculpatory comments for Abu Ghayth.
Among Mohammed’s comments were that he had never met Abu Ghayth and that Abu Ghayth played no role in the Richard Reid shoe bombing plot.
Kaplan said he wanted a list of the questions the defense team submitted to Mohammed at Guantanamo and then let Lewin argue the other side.
“This is a motion for what?” Lewin said. “They have no witness.”
Lewin said Mohammed indicated he would not testify by audio or closed-circuit television but, that aside, the Mohammed offering was simply “not relevant material.”
When Cohen stood to say the government had thrown up “roadblocks” that delayed access to Mohammed, Lewin became angry, saying “that is outrageous,” for the government has “bent over backwards” to gain access for the defense.
“The application is denied,” Kaplan said. “It is, in my view, entirely baseless.”
Kaplan has shown little patience for the defense team, deriding applications he said have been made without foundation.
Tuesday morning, the judge became angry when Dolan argued a motion she made in writing on March 16—that Mohammed’s answers suggest the government and the “United States Intelligence Community” knew of exculpatory material it had not disclosed under Brady v. Maryland, 373 U.S. 83 (1963).
Dolan also told Kaplan Tuesday “it stands to reason” that the government may have knowledge of statements by other Guantanamo detainees that might be helpful to Abu Ghayth.
Lewin’s response was that the defense ignored the case law, and he insisted the prosecution had provide all relevant portions of Mohammed’s prior statements to the defense.
“There is no Brady, your honor, there is simply no Brady,” Lewin said, and the judge concurred.
“This [argument] is entirely without merit,” Kaplan said to Dolan. “I will consider the question of whether it is sanctionable at another time.”
Kaplan then reminded the defense of an incident the day before when Stewart was questioning FBI special agent John McKinley, who served as “physician’s assistant” during the transportation of Abu Ghayth to New York after his apprehension in 2013.
The agent was to testify only to his physical examination of Abu Ghayth during the 14-hour flight from the Middle East and relate things like blood pressure readings, heart rate and pulse.
But Stewart apparently ran afoul of limitations on questioning when he asked McKinley whether Abu Ghayth “had indicated he had suffered a stroke.”
Kaplan stopped the lawyer, told the jury to “disregard entirely” Stewart’s question and called for a sidebar in which he confronted Stewart.
On Tuesday, , after upbraiding Dolan, Kaplan told Cohen that he had better stick to the limitations imposed on a proposed character witness Cohen is expected to call Wednesday.
He warned Cohen “If you go one step beyond that” there would be trouble “after what Mr. Stewart did yesterday in this courtroom” after promising to stay within the limits on questions he could put to McKinley.
Cohen plowed ahead after Tuesday’s hearing, writing the judge a letter renewing his motion to take testimony from Mohammed.
Within two hours after the hearing, Cohen said he received a telephone message from Mohammed’s attorney, David Nevin, while Cohen was in court.
Nevin, Cohen said, told him “KSM is in fact willing to appear in this court by video to answer any and all questions with regard to Sulaiman Abu Ghayth, with regard to the so-called Richard Reid/Saajid Badat shoe bombing, and with regard to the 9-11 conspiracy.”
Even though the judge had ruled just a few hours earlier that Mohammed’s contributions were not material, Cohen said Mohammed’s answers set forth only “narrow issues” while the new offer “does not set any limits at all as to these subject matters.”
@|Mark Hamblett can be contacted at Mhamblett@alm.com