Lawyers for the first Guantanamo detainee to be tried in a civilian court will ask the judge to dismiss the single conviction against their client on Thursday.
Ahmed Khalfan Ghailani was convicted in November of a single count of conspiring to destroy government buildings by a federal jury in Manhattan. He was acquitted of more than 280 other counts of conspiracy and murder for the 1998 bombings of U.S. embassies in Tanzania and Kenya.
In court papers, Ghailani's lawyers point out "the irreconcilability between the sole count of conviction and Ghailani's acquittal on all other counts of the indictment, which, without dispute, all arose out of the exact same conduct and evidence."
Andy McCarthy, who was a terrorism prosecutor in the Southern District of New York when the U.S. Attorney's office wrote the indictment against Ghailani, said the jury's verdict was illogical. He said the indictment was structured for the counts to be cohesive.
"Basically, if you're in the Al Qaeda conspiracy, then you're in the bombing conspiracy, and you're in the explosives conspiracies and you're in the explosive-carrying, and you've killed the 224 people," said McCarthy.
But Anthony Barkow of NYU Law School said the U.S. Supreme Court has already decided that inconsistent verdicts are not a ground for reversing a conviction.
"I think it's extremely unlikely that even if the court were to find or conclude that the verdict is inconsistent that it would overturn the conviction," said Barkow.
In papers to the court for Thursday's hearing, the government calls Ghailani an active participant, citing trial evidence that he helped buy the truck that carried the Tanzania bomb and fled with a fake passport right before the bombings occurred.
Ghailani is set to be sentenced Jan. 25. The government is asking for life in prison.