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Lockerbie case must be proved 'beyond reasonable doubt'

 

January 30, 2001
Web posted at: 7:32 p.m. EST (0032 GMT)

WASHINGTON (CNN) -- Does the circumstantial evidence presented by Scottish prosecutors in the Lockerbie bombing trial prove "beyond a reasonable doubt" that Libyans Abdelbaset Ali Mohmed al-Megrahi and Al Amin Khalifa Fhimah bombed Pan Am Flight 103 over Lockerbie, Scotland, in 1988?

Law professors closely watching the trial at Camp Zeist, Netherlands, say that the way the Scottish judges answer that question will determine whether the Libyans spend the rest of their lives in prison or walk away as free men.

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The trial, which began in May, is now in its final phase. On January 18, after 84 days of proceedings that ended with the defense summation, the three presiding judges adjourned. They are expected to announce their verdict Wednesday.

The judges have a two-tiered task before them, according to Clare Connelly, a law lecturer, or professor, at the University of Glasgow, Scotland.

The judges must first decide whether the evidence compellingly points to the Libyans as the architects of the bombing, said Connelly, director of the Lockerbie Trial Briefing Unit, a project the university established as a public service and a media resource.

They must decide what information presented during the proceedings is "reliable and credible," she said.

The judges then must decide if the information is sufficient to prove the Libyans' guilt "beyond a reasonable doubt" from which they could draw "an inference of guilt," Connelly explained.

"For murder, you have to show they carried out the crime, had the requisite mental state and that their actions caused the harm suffered," Connelly said in a telephone interview from Glasgow.

If the men are convicted, they could appeal, but if they are acquitted, prosecutors cannot re-try them for the same crimes, according to Scottish law.

Connelly refused to comment on the merits of the prosecution's case, saying she could be found in contempt of court under Scottish law.

"What I can tell you is the Crown's case has been based on circumstantial evidence. There is no eyewitness, no smoking gun. Therefore, the case becomes more complex" than if the prosecutors had pressed for conviction of a lesser charge, such as conspiracy to murder.

She added that it is not unusual for murder cases to be resolved through primarily circumstantial evidence. Connelly added that the Lockerbie trial represents Scotland's biggest mass-murder case and is unique in Scottish history because of the enormity of the crime and legal and logistical challenges faced by investigators and prosecutors from the Scottish Crown.

The bombing, one of the world's worst acts of airline terrorism, killed all 259 people on board and 11 people in the village of Lockerbie. A total of 189 people killed were Americans.

British and U.S. investigators determined during their years-long investigation that plastic explosives embedded in a cassette recorder, hidden in a suitcase, caused the explosion, not mechanical failure.

Before the trial, prosecutors had 1,000 witnesses on the list, and they ended their case earlier this month after putting 200 of those witnesses on the stage.

The Libyans' lawyers, also from Scotland, blasted the prosecution's case as weak and overly circumstantial throughout the proceedings at Camp Zeist, a former U.S. military base.

The trial was held in the Netherlands because Libyan leader Moammar Gadhafi refused to hand over the suspect unless the trial was held in a neutral country outside Britain and the United States. Three Scottish judges and a fourth judge in reserve presided over the nonjury trial.

The Libyans had been charged originally with three charges --murder, conspiracy to murder and violation of Britain's Aviation Security Act.

However, under what Connelly said was a normal procedure in Scottish courts, prosecutor Alastair Campbell asked the judges to dismiss the two lesser charges and convict the men of murder alone, insisting that the circumstantial evidence was strong enough to sustain murder convictions.

Robert Black, a law professor at the University of Edinburgh and long a critic of the prosecution, said the Crown has not presented a credible case, predicting that the Libyans would likely be set free.

"The prosecution approach involved inviting the court to draw an incriminating inference from every relevant piece of evidence, even though the evidence was in itself quite neutral and capable of supporting quite innocent inferences," he wrote in response to emailed questions.

"This is simply not good enough in a criminal trial where the accused persons enjoy the presumption of innocence and their guilt must be proved by the prosecution beyond reasonable doubt," he wrote.

Black also predicted that the Libyans would be acquitted, writing: "The trial has demonstrated just how weak the case against the Libyans is, and always has, been. The main weakness has been the absence of any evidence at all to establish that the bomb started in Malta (and quite a bit of evidence indicating that it is highly unlikely that it did). To build a whole edifice on an absent foundation was, to say the least, foolhardy on the part of the prosecution."

British and U.S. authorities have said al-Megrahi and Fhimah hid the bomb in a Toshiba cassette recorder, hid it in a Samsonite suitcase and put the suitcase on a Pam Am flight headed to Frankfurt, Germany, from the Luqa airport in the Mediterranean island of Malta.

"The real and fatal gap at the heart of the prosecution case is that they haven't been able to lead any evidence at all that could establish that the case containing the bomb started at Malta Airport," Black wrote. "And without such evidence the case against the two Libyans simply collapses."

Black said a prosecution witness billed as key to the case against the Libyans failed to give eyewitness testimony conclusively linking al-Megrahi and Fhimah to the bombing. Abdul Majid Abdul Razkaz Abdul-Salam Giaka, a Libyan informer for the U.S. Central Intelligence Agency at the time of the bombing, worked at Libyan Arab Airlines in Malta, and now is in a witness protection program the United States, Black said.

The witness did not provide testimony "implicating the accused in the manufacture and transmission of the bomb from Malta," Black wrote, adding that the CIA itself had characterized him as unreliable.

"This was the person billed as the Crown's star witness," Black wrote.

Donna Arzt, a Syracuse University law professor who heads the Lockerbie Trial Families Project, said it was the media that billed Majid the star witness, not the prosecution or the defense. The Families Project, based at Syracuse, is an effort to inform the families of Lockebie bombing victims of the developments at the trial through a World Wide Web site. The project receives funding from the U.S. Department of Justice.

She also cautioned against making predictions on the outcome of the case based on the fact that the defense put up only three witnesses during the proceedings while the prosecution put up more than 200 witnesses.

Arzt explained that the prosecution could be expected to present more information during the trial because the "defense does not have the burden of proof and does not have to put on any witnesses... "It only has to cast doubt on the Crown's case, which can be done more readily in summation than by putting on its own witnesses."

Under Scottish law, Arzt wrote, "the defense gets to broadly cross-examine the Crown witnesses on any relevant subject. This is different from procedure in the U.S., where cross-examination is limited to the scope of the direct examination. So in effect, the defense already put on much of its case during its cross-examination of the Crown's witnesses."



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RELATED SITES:
Scottish Courts
Libyan Arab Jamahiriya
Lockerbie trial brief

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