VZCZCXRO6427
PP RUEHAST RUEHCI RUEHDBU RUEHLH RUEHNEH RUEHPW
DE RUEHBI #0473/01 3491230
ZNR UUUUU ZZH
P 151230Z DEC 09
FM AMCONSUL MUMBAI
TO RUEHC/SECSTATE WASHDC PRIORITY 7638
INFO RUCNCLS/ALL SOUTH AND CENTRAL ASIA COLLECTIVE
RUEHNE/AMEMBASSY NEW DELHI PRIORITY 8850
RUEHCG/AMCONSUL CHENNAI 2169
RUEHBI/AMCONSUL MUMBAI PRIORITY 2872
RUEHCI/AMCONSUL KOLKATA PRIORITY 1956
RHEHAAA/NSC WASHINGTON DC
RUEAIIA/CIA WASHDC
RUEAUSA/DEPT OF HHS WASHINGTON DC
RHMFIUU/DEPT OF JUSTICE WASHINGTON DC

UNCLAS SECTION 01 OF 02 MUMBAI 000473 
 
SENSITIVE 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: ASEC PTER PHUM PGOV IN
SUBJECT: MUMBAI ATTACKS TRIAL:  KASAB'S ATTORNEY SACKED BY COURT, BUT 
TRIAL WILL LIKELY CONCLUDE SOON 
 
REF: A. 09 Mumbai 169 
     ¶B. 09 Mumbai 304 
 
MUMBAI 00000473  001.2 OF 002 
 
 
¶1.   (U) Summary:  As the prosecution was about to conclude its 
case on November 30, the presiding judge dismissed the defense 
attorney for Ajmal Kasab, the primary accused in the November 
2008 Mumbai terrorist attacks.  The judge immediately appointed 
the assistant defense attorney as successor, and pushed for a 
speedy conclusion of the case.  The judge removed the defense 
attorney, Abbas Kazmi, when he refused to allow the admission of 
testimony of hundreds of witnesses in affidavit form, and waive 
the right of cross-examination.  Observers note that this move 
may create several grounds for appeal, but nothing that would 
give rise to an acquittal, and the trial should conclude within 
two months with the expected verdict.  End Summary. 
 
 
 
¶2.   (U) On November 30, Judge M.L. Tahilyani removed Abbas 
Kazmi, the court-appointed attorney for the lone surviving 
accused in the 2008 Mumbai terrorist attacks, charging him with 
`non-cooperation."  Kazmi had represented Kasab since the trial 
began in April 2009, but Tahilyani was angered by Kazmi's 
refusal to waive his right to cross-examine hundreds of 
witnesses, whose testimony the prosecution hoped to admit by 
affidavit.  The prosecutor had hoped to conclude his case on 
November 26, the anniversary of the terrorist attacks, and 
announced he would submit affidavits of 340 more witnesses, 
instead of verbal testimony.  On that day, however, Kazmi 
objected to accepting this testimony in affidavit form, causing 
the judge to become furious, and accuse Kazmi of delaying the 
case.  The judge claimed that Kazmi had known about the 
prosecutor's intention to submit these affidavits for some time. 
 Kazmi contended that much of the proposed testimony -- such as 
doctors' statements as to cause of death and eyewitness accounts 
- were more significant than expected and warranted 
cross-examination.  When the court resumed on November 30, Kazmi 
persisted in his refusal to accept the affidavits without 
cross-examination, and the judge relieved Kazmi from the case, 
stating, "The right of the accused to have a just and fair trial 
does not mean that the advocate appointed by the court shall 
take advantage of the situation and drag the trial." 
 
 
 
¶3.   (U) Legal observers confirm that eyewitness accounts and 
medical testimony would not come within the procedural rules for 
submitting testimony by affidavit and support Kazmi's stance in 
court.  Some local attorneys expressed consternation with Judge 
Talhiyani's actions.  Advocate Yug Mohit Chaudhry argued that 
the removal of Kazmi near the end of the trial has crippled the 
defense and "undermines the constitutional guarantee of a fair 
trial."  He added that dismissing Kazmi for objecting to the 
Prosecution's request to submit testimony of 340 witnesses by 
affidavit alone "may give the appearance of bias," a potential 
basis for the case to be ordered re-tried.  (Note:  Since Indian 
trials are bench trials rather than jury trials, improprieties 
at trial can be remedied by presenting additional information 
for a further hearing before the same judge.  End Note.) 
 
 
 
¶4.   (U) Kazmi was immediately replaced by his assistant, K.P. 
Pawar, whom the court had previously found to be inexperienced 
and not competent to take over the case when Kasab's previous 
attorney, Anjali Waghmare, was dismissed for conflict of 
interest (Ref A).  Nevertheless, Pawar indicated to the court 
that he would cross-examine 140 of the 340 witnesses, and accept 
the remainder.  From December 3-14, he ultimately chose to 
cross-examine roughly half of the witnesses, including the 
doctors who performed post mortems on victims, and the two 
investigating police officers.  Special Prosecutor Ujjwal Nikkam 
told the media on December 6 that he expects the submission of 
evidence would conclude by December 18 and then the prosecution 
and defense could begin their final arguments.  Kazmi told 
Congenoff that these arguments could take another month, after 
which the judge would prepare a written decision for each 
charge. 
 
 
 
¶5.   (SBU) According to Kazmi and contacts who have attended 
court proceedings, the atmosphere at the trial was occasionally 
hostile to Kazmi.  Nikkam, the prosecutor, reportedly referred 
 
MUMBAI 00000473  002.2 OF 002 
 
 
to Kazmi during the trial as "the terrorist's attorney," "the 
counsel for Pakistan," and "Abu Abbas" (referring to the 
suspected mastermind of the 26/11 attack who is in Pakistan), 
comments which the judge allowed.  Observers have noted that 
this may be sufficient indication of bias on the part of the 
judge to warrant retrial.  Kazmi concedes, however, that given 
the quantity of evidence pointing to Kasab's direct involvement 
in the attacks, an appellate court could rule that any bias was 
immaterial to the ultimate verdict in the case. 
 
 
 
¶6.   (U) Comment:  The court and the lawyers are mindful that 
the world is watching this trial.  The pressure to conclude the 
case by the November 26 anniversary no doubt played a part in 
the Court's frustration, but the overwhelming evidence against 
Kasab, and Kasab's own admission of guilt in court (ref B), has 
also added to the pressure to bring the matter to an immediate 
conclusion.  The court's termination of Kazmi is a rare 
occurrence and indicates the court's frustration with the length 
of trial, mirroring public sentiment.  According to sources 
here, the formal verdict is not likely before February 2010 and 
while several grounds for appeal have been identified, no one 
expects any of these could result in an acquittal.  End Comment. 
FOLMSBEE