Legal Maneuvering on Death Penalty in Embassy Bombing Case Heats Up

NEW YORK – As the jury weighs the guilt or innocence of four men accused of plotting to bomb U.S. embassies in Africa, lawyers already have begun to focus on possible proceedings with higher stakes: the trial's death penalty phase.

Jurors completed their seventh day of deliberations in the case on Friday. The trial is scheduled to resume Monday.

The same jury of seven women and five men would be asked to decide whether two of the defendants — Rashed Daoud Al-'Owhali and Khalfan Khamis Mohamed, who are accused of carrying out the bombings — should be put to death if they are convicted.

The death penalty phase would begin about a week after a guilty verdict, and could prove more dramatic than the trial itself.

Prosecutors have told the court they plan to call about 30 witnesses over two days. Some of the witnesses would be maimed survivors of the Aug. 7, 1998, bombings of the U.S. embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, that killed 224 people, including 12 Americans.

There would be testimony from a woman blinded by the Kenyan blast; another witness would describe how a mortician tried to reconstruct the face of his dead wife.

Jurors would also view graphic crime scene photos and a government-produced videotape ending with each victim's name slowly scrolling across the screen.

Defense attorney Frederick Cohn complained that the testimony would be "over the top" because jurors had already heard from other victims during the trial.

"How many blind people do you need to testify?" Cohn argued. "I don't mean to sound grotesque, but that is what it is about."

The defense also asked U.S. District Judge Leonard Sand to exclude photos it called irrelevant and prejudicial. Gruesome scenes from Dar es Salaam of a charred body lying outside the bombed-out embassy entrance and of bodies lining the floor of a morgue "prove nothing other than that people died," said attorney David Ruhnke.

But Sand ruled that the government "has an obligation to present to this jury a fair and reasonable depiction of what occurred. What occurred was not a bloodless event. ... Blood was spilled."

Prosecutors allege Al-'Owhali and Mohamed were loyal soldiers in an international plot by exiled Saudi millionaire Osama bin Laden to kill Americans.

Al-'Owhali, 24, allegedly rode in a bomb-hauling truck in Kenya and threw a stun grenade to distract guards at the embassy there. Mohamed, 27, was accused of helping to build and deliver the bomb in Tanzania.

Defense attorneys have argued the alleged confessions by both defendants were coerced. They also have portrayed the men as mere pawns who did not know about bin Laden's alleged scheme.

If there is a death penalty phase, the defense plans to produce evidence that prosecutors cut plea deals with high-ranking terrorists, sparing them harsh sentences even though they had greater roles in the alleged conspiracy.

Ruhnkeargued that unlike those who cut deals with the government, his client, Mohamed, "was not a leader or an organizer. That is the reason he should not face death."

Sand ruled that prosecutors must turn over evidence about those who cooperated with the government, including admitted terrorists who testified at trial. One witness was Jamal Ahmed Al-Fadl, a founding member of bin Laden's terrorist organization, al-Qaeda, who pleaded guilty to conspiracy charges to avoid a life sentence.

The judge agreed the defense should be allowed to try to show "possible disparity in the treatment of culpable people."

The two other defendants — Wadih El-Hage, 40, who is accused of heading a terrorist cell in Kenya, and Mohamed Sadeek Odeh, 36, the alleged "technical adviser" to the bombings — could face life in prison if convicted of conspiracy.