ATTORNEY FOR MUMBAI TERRORIST KASAB EXPECTS CONVICTION, BUT

UNCLAS SECTION 01 OF 02 MUMBAI 000367 SENSITIVE SIPDIS E.O. 12958: N/A TAGS: PGOV PHUM PINS PK PREL PTER IN SUBJECT: ATTORNEY FOR MUMBAI TERRORIST KASAB EXPECTS CONVICTION, BUT AIMS TO MOUNT DEFENSE REF: MUMBAI 169 MUMBAI 00000367 001.2 OF 002 ¶1. (SBU) Summary: On September 3, Poloff met with S.G. Abbas Kazmi, attorney for the lone surviving assailant from the November 2008 terrorist attack on Mumbai, Mohamed Ajmal Kasab. Kazmi discussed his efforts to mount a defense for Kasab, the lack of resources provided to court-appointed attorneys, and the likely outcome of the trial. Kazmi bemoaned the lack of financial support for legal aid programs in general in India, but, given the overwhelming evidence against Kasab, he expected that Kasab would be convicted and sentenced to death. Overall, Kasab has received a more fair trial than most, as the Indian government has made efforts to ensure that its processes and outcome are transparent, and can withstand international scrutiny. End Summary. ¶2. (SBU) On September 3, Poloff met with S.G. Abbas Kazmi, a Mumbai-based lawyer appointed by the court to represent the lone surviving assailant from the November 2008 terrorist attack on Mumbai, Mohamed Ajmal Kasab. Kazmi was assigned the case after a series of legal aid attorneys refused the appointment, were intimidated into declining by public protests outside their homes, or were dismissed by the court for conflicts of interest (see reftel A). Kazmi is a High Court Advocate who generally works for private clients, but has previously represented some of the accused in the 1993 Mumbai bomb blast cases, and the 2003 Gateway Bombing Case. ¶3. (SBU) Kazmi was appointed on the day the trial was slated to begin. He asked for a one month adjournment to read the 1200 page charge sheet and prepare his defense, but the court granted him only two weeks. Most of those two weeks was taken up with Kazmi's application to have Kasab declared a minor and remanded to the juvenile justice court, which was denied by the judge, M.L. Tahilyani. Kazmi explained that he did not seek the assignment of Kasab's attorney, but happened to be in the court as an observer on the first day of the trial when Kasab's previous counsel was taken off the case. He told Judge Tahilyani that he was not interested in being appointed because he was fully committed to other clients whose cases were pending. Despite his protests, at the end of the session, the Judge named Kazmi to defend Kasab. ; ¶4. (SBU) According to Kazmi, his attempts to provide Kasab with a robust defense and a fair trial have been hampered from the beginning. Kazmi is not permitted to confer with his client in private to prepare a defense. The only time he is allowed to speak to Kasab is for 10-15 minutes before trial when Kasab has been brought to the court, surrounded by guards. Compounding the difficulty in preparing a defense, the state provides no funding for expert witnesses, co-counsel, nor research assistance to address the numerous elements of technical evidence, such as the Global Positioning technology, satellite phones and DNA evidence. Whatever cross examination Kazmi has been able to formulate has been based upon his internet research on these topics. (Note: It is not clear what resources have been provided to the prosecution for the same efforts. End Note.) Kazmi also complained that although the court has granted a stipend for his services higher than the normal rates, the state has yet to pay him anything, though he has submitted monthly statements for services since he was appointed four and a half months ago. This case requires all of his time; he has not been able to tend to any of his other clients and their cases have been continually adjourned. (Note: The normal stipend for a legal aid trial is 900 rupees, or around USD 19, per case. End Note.) (Comment: Kazmi has suffered pressure from the Shia Muslim community to which he belongs for taking up Kasab's defense, and he has been removed from the trusteeship of an Islamic trust in protest. However, media representatives covering the trial have noted that Kazmi appears to enjoy sharing the limelight with the prosecutor in the case, giving extensive daily summaries of the trial to the press. End Note.) MUMBAI 00000367 002.2 OF 002 ¶5. (SBU) While Kasab has not expressed remorse to him, Kazmi said his client confessed his crimes because he accepts responsibility for his actions, and sees no point in a protracted trial, nor any reason to be kept alive. Kasab would just like to put an end to the trial, he said. Kazmi explained that the prosecution called 170 witnesses as of September 3 and the case was likely to continue for an additional two to three months. He advised that because it is a capital case (punishable by the death penalty) there will be an automatic appeal to the High Court. The death penalty is authorized in India only in the "rarest of rare cases," he said, where there has been extreme brutality or inhuman treatment. Indian law allows consideration of mitigating factors, such as whether Kasab had been brainwashed, but Kazmi is not planning on calling witnesses to testify on behalf of Kasab to explain the circumstances that led him to be indoctrinated by Lashkar-e-Taibba. Kazmi said, "I am an Indian citizen. I am not going to contact anyone in Pakistan," ruling out calling anyone from Kasab's family to testify on his behalf in the mitigation phase of the trial. Even if he wanted to, there are no funds to bring such a witness to Mumbai, nor would it be likely the person would get a visa, he surmised. Further, he noted that no one from Kasab's family has contacted him. ¶6. (SBU) Kazmi expects that Kasab will be convicted and given the death sentence, given the overwhelming evidence against him, as well as his confession. Kazmi lamented that the Indian judicial system in general fails to provide good attorneys to those who can' afford them; inadequate funding throughout the system prevent court-appointed attorneys from mounting credible defenses. He bemoaned the fact that India provides unequal justice, the rich being able to afford the best attorneys and pay for expert witnesses, while the poor often get barely competent attorneys. (Note: Poloff reminded Kazmi that this is a struggle in every country. End Note.) ¶7. (SBU) Comment: Kasab's and Kazmi's fatalistic acceptance of the ultimate outcome of the trial appears to be shared by the public at large. By Indian standards, however, Kasab is receiving a more fair trial than most. The Indian government is keen that all the correct procedures be followed, so that its verdict will be accepted by the international community. The trial has been allowed to proceed under the full glare of the media, an unprecedented amount of transparency. In addition, the admission of foreign experts - including the FBI -- appears to have boosted the level of evidentiary standards and testimony significantly. Overall, as Kazmi noted, the Indian judicial system is severely constrained by inadequate funding, its courtrooms are overcrowded and antiquated, and its courts are burdened by a massive backlog of cases (discussed septel). Attorneys and civil rights groups are advocating for more robust funding for providing a defense to the accused, but as yet their pleas have not become a priority, given the many other pressing demands on the state and central governments. End Comment. FOLMSBEE