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