VZCZCXRO7862
PP RUEHAST RUEHCI RUEHDBU RUEHLH RUEHPW
DE RUEHBI #0169/01 1140406
ZNR UUUUU ZZH
P R 240406Z APR 09
FM AMCONSUL MUMBAI
TO RUEHC/SECSTATE WASHDC PRIORITY 7134
INFO RUEHIL/AMEMBASSY ISLAMABAD 0825
RHEHAAA/NSC WASHINGTON DC
RUEAIIA/CIA WASHDC
RUEHNE/AMEMBASSY NEW DELHI 8365
RUCNCLS/ALL SOUTH AND CENTRAL ASIA COLLECTIVE
RUEHBI/AMCONSUL MUMBAI 2324

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