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

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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

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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

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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

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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

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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

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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