TRIAL OF SURVIVING MUMBAI ATTACKER BEGINS

UNCLAS SECTION 01 OF 03 MUMBAI 000169 SENSITIVE SIPDIS E.O. 12958: N/A TAGS: PK PGOV PTER PHUM KDEM IN XD SUBJECT: TRIAL OF SURVIVING MUMBAI ATTACKER BEGINS MUMBAI 00000169 001.2 OF 003 ¶1. (SBU) Summary: With the eyes of the world on the trial of Mohammed Ajmal Kasab, the lone surviving gunman from the terrorist attack on Mumbai, the High Court is trying to move the case forward expeditiously while still guaranteeing that justice is done so that any conviction obtained will withstand appeal. With 312 charges to prove, the prosecution said it would call over 1800 witnesses and present 750 pieces of evidence. The trial was at first obstructed by difficulty obtaining an attorney for the defendant and more recently by Kasab's attempts to deploy technical defenses seen as spurious by the court. The case has been the focus of intense media scrutiny and high security. For political reasons India clearly wants a transparent, fair and safe trial, though none here doubt Kasab will be convicted given the overwhelming evidence against him. End Summary. Kasab Trial on Fast Track -------------- ¶2. (U) The trial for Mohammed Ajmal Kasab, the lone gunman to be arrested for the November 26, 2008 terrorist attack on Mumbai, commenced on April 20 in a special fast-track court proceeding. (Note: Two other alleged co-conspirators, Fahim Ansari and Sabahuddin Ahmad, are being tried jointly with Kasab. End Note.) The presiding judge, M.L. Tahilyani, is under intense pressure to ensure a fair, transparent, and safe trial that leads to Kasab's solid conviction. The domestic and international press are covering the trial closely, and reports detail every daily drama. Judge Tahilyani ordered the construction of a special underground, "bomb-proof" courtroom to ensure security for the proceedings and reporters are searched daily as they enter the courtroom. Special Public Prosecutor Ujjwal Nikam told the court the government intends to produce 1,820 witnesses and more than 750 pieces of evidence to prove Kasab's guilt. In an effort to expedite the trial, Nikam announced that the government will submit evidence in affidavit form, omitting live testimony, where the evidence is uncontested by the defense. ¶3. (U) This trial has proceeded much faster than normal for India's judicial system, where criminal cases can take 10 years or more to conclude. The fast-track system was initiated in 2005 to allow special courts to expedite high profile cases, bringing them to trial in just three to six months from the date of arrest. Criminal cases in India are tried before a judge, thus there is no jury selection process to delay the cases. Criminal attorney Parvez Memon told Congenoff that the court appears to be making every effort to provide swift, fair and impartial justice. Another attorney, however, told Congenoffs that the whole trial is a facade as everyone in India saw Kasab on the television and no one actually believes he could be innocent. 312 Charges Alleged -------------- ¶4. (U) The list of charges against Kasab is over 11,000 pages long. It includes 312 charges, including murder, conspiracy leading to 166 murders and 234 injuries and property destruction worth 20 Million USD, and violation of multiple statutes such as the Arms Act, Explosives Act, Passport Act, Foreigner's Act, Customs Act and the Unlawful Activities Prevention Act. The two co-defendants, Faheem Ansari and Sabauddin Ahmed, are alleged to be Lashkar-e-Taiba (LeT) operatives. They were arrested by the Uttar Pradesh police and stand accused of providing support for the terror strikes. Difficulty Maintaining Defense Counsel -------------- MUMBAI 00000169 002.2 OF 003 ¶5. (U) The trial would have started sooner, but Mumbai-based attorneys, almost en masse, refused to defend Kasab. Three attorneys volunteered to represent Kasab, but each withdrew after they were subject to angry protests by Shiv Sena activists or saw their homes vandalized by protesters. With no volunteers, the court turned to the assigned-counsel list, which is similar to a Legal Aid, where often less-experienced attorneys gain their initial courtroom experience. In December, the first appointee withdrew, citing a conflict of interest. The next attorney to accept the assignment, Anjali Waghmare, suffered vandalism of her home by an angry mob of over 100 Shiv Sena activists outraged that she would defend the terrorist. She initially resigned from the case under pressure, but then decided to continue the representation after the court appointed special police protection for her. However, Waghmare was dismissed from the case on April 15th when the court was notified that she had previously accepted representation of a witness in the trial, a conflict of interest and a violation of the code of conduct for attorneys. Her dismissal is viewed by attorneys as appropriate to assure that the accused has a fair trial. (Note: Kasab has repeatedly requested a Pakistani lawyer, but was told that the Pakistani Foreign Ministry had not responded to his request. According to Embassy Islamabad, Pakistan's position is that Kasab should be turned over to Pakistan for trial, so they are not likely to assist in his defense in Mumbai. Previously the court had told Kasab that under Indian law a Pakistani could not represent him. End Note.) The judge said, "We need to give a just and fair trial to Kasab and it is necessary to appoint a lawyer who can handle a case of this nature properly and with due diligence." The court then turned again to the roster of legal aid attorneys. ¶6. (U) On April 16 The court appointed criminal lawyer Abbas Kazmi to represent Kasab. The trial continued immediately with no time for Kazmi to review the evidence and only one day to consult with his client. Kazmi entered a plea of not guilty for Kasab and proceeded to raise various technical defenses for the accused. When those failed, on April 21 he asked the court for a one month recess to review the lengthy charges. The court granted Kasab and his attorney a nine day adjournment to May 2 to review the 11,000 page list of charges and prepare for the trial. Technical Defenses Failed -------------- ¶7. (U) In his first day representing Kasab, Kazmi presented a host of technical defenses, which, according to observers, lack merit, but are being presented to ensure that Kasab has had every possible opportunity to challenge the charges against him. Predictably, Kasab alleged that his confession was coerced and should be inadmissible. Kasab's attorney told the court that his client had been beaten while in police custody and that he recorded his "so called" confession in fear. Commentators were not shocked by the claim. The Times of India noted, "Indian police are notorious for their use of `third degree' interrogation methods, which run from the dislocation of fingers to electric shocks and severe beatings." Rakesh Maria, the head of the Mumbai Crime Branch, however, denied the allegation and told the court that Kasab "cracked within hours" and started talking. The court is considering that plea, but observers note that given the independent evidence against Kasab, including the pictures of him with his weapon and large duffle bag over his shoulder, the court is unlikely to bar use of the confession at trial as it creates no additional prejudice against the defendant. ¶8. (U) Kasab also alleged that he was a minor when the attacks occurred, which, if true, would spare him from the death penalty, make him eligible for bail, move the case to the Juvenile Justice Court and delay the trial. The Judge noted that in his confession, Kasab claimed to be 21 years old at the time of the attack, and that he had made the same declaration to his jailors and others as well. While denying the application and directing that the trial proceed, the court left open the door for Kasab to present proof of his claim at such later time as he can offer evidence to establish the claim. Parvez Memon, a criminal attorney in Mumbai, noted that it would be very MUMBAI 00000169 003.2 OF 003 difficult for Kasab to establish that he was a minor as he entered the country with no documentation and what proof might establish his real age is in Pakistan. The special prosecutor, Ujjwal Nikam, asked the court to order an inquiry into Kasab's age and to allow him to present such evidence to the court. ¶9. (U) In yet a third attempt to delay the trial, Kasab, through his attorney, told the court that he could not understand the charges that were being read to him or the proceedings. (Note: The 11,000 page list of charges is written in Marathi and the court proceedings are conducted in English. End Note.) In previous court appearances, before an attorney was present to defend him, Kasab had addressed the court in English, and appeared to understand the court's questions without difficulty, according to Memon. The court rejected his contention that he could not speak English, and was unsympathetic to claims that he could not understand Marathi. Judge Tahilyani denied Kasab's request to translate the charges into Urdu, his native language, explaining that his attorney was fluent in Marathi, Hindi and English and could explain the charges to him. (Note: Hindi and Urdu are very similar though the scripts differ. Marathi is somewhat similar to Hindi. End note.) ¶10. (SBU) Comment: The trial of Kasab has largely gotten off to a good start, with Judge, prosecutors, and security agencies all committed to a speedy, fair, and safe trial. The Indian government clearly hopes to use this case to highlight the best elements of its legal system and to ensure that the evidence against Kasab - and by extension, elements in Pakistan - receives the widest possible attention. Under pressure to bring this case to trial as soon as possible, the court was faced with the surprising challenge of securing a defense attorney for Kasab in a city where sentiments about the attacks are still painful and raw. Given the overwhelming evidence against Kasab, no one expects anything less than a conviction on all counts; in fact, some lawyers have criticized the need for a trial, and have suggested that a special panel of judges could pronounce him guilty in a matter of days. At this time, it is too early to predict how long the case will take, but clearly with over 1,820 witnesses and more than 750 pieces of evidence, the trial may well take more than a year. End Comment. FOLMSBEE