The Judge finds the evidence sufficient to support Ghailani's conviction on the conspiracy count, and that the verdict was not inconsistent with the acquittals on other counts. (He notes one can be convicted of conspiracy to commit a crime while being acquitted of the underlying substantive offense.)
He also writes:
The jury, in the Court’s view, rightly found Ghailani guilty of the charge asserted in Count 5. Moreover, the undersigned is satisfied that Ghailani was guilty, at least on a Pinkerton theory, of at least the substantive offenses of bombing the two embassies charged in Counts 7 and 8 and of the 224 murders charged in Counts 11 through 234. Thus, if there was any injustice in the jury’s verdict, the victims were the United States and those killed, injured and otherwise devastated by these barbaric acts of terror, not Ghailani.
He also rejects the defense argument that instructing the jury on conscious avoidance was prejudicial error, and that the government’s summation was improper in part. From the Government's summation:
“There are hundreds and hundreds of names in this indictment. Hundreds. And the thing to know about killing on this scale is that killing on this scale is horribly [sic], it's planned and it’s precise, and it's terribly sophisticated. And in the course of an operation like that that cost us many lives, there is no room for some dupe just to get led into the heart of it. No room for a dupe because he might get cold feet. And there’s no room for a dupe because he might talk to his friends. And there’s no room for a dupe because he might call the cops. And the other thing about killing on this scale is there’s no room for a dupe because when it's done the costs are so high and so gruesome and so apocalyptic that anyone with a conscience, no dupe stays silent in the face of being involved in this kind of thing. That’s why there are no dupes in this.
The Judge writes (after noting the defense didn't object at the time):
Ghailani’s contention that the comment at issue improperly shifted the burden of proof to him is unpersuasive. The prosecutor’s meaning was not that Ghailani had failed to demonstrate his innocence. Rather, it was a response to Ghailani’s repeated contention that he was a naif, duped into unwittingly assisting others in their preparations to bomb the embassies. The point was that Al Qaeda would not have allowed a dupe to operate at the heart of the embassy bombings plot because a dupe could not be counted upon to refrain from revealing to authorities what he had learned and seen, particularly after the bombs had wrought their carnage.
There was no shifting of the burden of proof. In any case, the prosecutor’s fleeting remark here certainly did not amount to a flagrant abuse, either in isolation or in the overall context – an overall context in which Ghailani’s “dupe” defense clearly invited the comment and in which a lengthy charge repeatedly made clear that the burden of proof always was borne by the government and never shifts to the defendant.
More details from the defense motion are here. The prosecution is seeking a life sentence. Sentencing is set for January 25.
