Justice on Trial
by Robert E. Precht
Cornell University Press, 2003, 183 pgs, $22.95
Review by Hans Sherrer
Justice:Denied magazine, Issue 25, page 11
Eight years before the events of September 11, 2001, was the World Trade Center explosion on February 26, 1993. Within days of the explosion, four men alleged to have been involved were charged with conspiring “to commit offenses against the United States.” 1 Public defender Robert Precht was appointed to represent one of those men – Mohammad Salameh. Defending Mohammad is Precht’s first-hand account of defending Salameh against the government’s accusation that he was a heinous terrorist. Precht’s bird’s-eye view of the events covered in the book provides a different perspective than what was reported by the press.
How different is emphasized by Precht’s exclamation to the jury in his closing argument – “He is an innocent man!” In contrast, a reliance on news accounts could lead one to believe Mohammad was the Antichrist. The great value of Precht’s book however, is to not only explain why Mohammad is innocent, but how the trial judge, the federal prosecutors, and the media effectively worked as partners to influence the jury to find him guilty in spite of strong evidence supporting his innocence.
After emigrating to the U.S. from Jordan in 1981, Mohammad lived in Jersey City, New Jersey. Precht doesn’t deny that Mohammad knew Ramzi Yousef – who at the time of Mohammad’s trial was alleged to have been involved in the explosion, although he wasn’t indicted until over a year later. Mohammad met Yousef through their Muslim ties, after he entered the U.S. two months before the WTC catastrophe. Neither does Precht deny that due to his naiveté and sense of good will towards a fellow Muslim, that Mohammad may have unwittingly done some things to help Yousef. However Precht explains in Defending Mohammad that he did not knowingly provide any assistance to the people who planned the explosion, and he played no role in the explosion itself.
Yet the government tagged Mohammad as the driver of a yellow van that they surmised transported the explosive device, which they claimed was a fertilizer bomb. However the prosecution’s case against Mohammad was circumstantial, since there was no eyewitness or physical evidence placing him at, or even near the WTC at the time of, or just prior to the explosion.
The prosecution claimed that three days before the explosion, Mohammad rented the yellow van from Ryder for a week, and that he drove it to the WTC on the morning of February 26th. However a day before the explosion Mohammad personally reported to the police that the van was stolen outside a store in Jersey City. He correctly reported his name and address, the Ryder unit number, its color, that it had Alabama license plates, and where he rented it.
The prosecution also claimed that a Jersey
station attendant, Willie Moosh, had identified Mohammad from a
photograph as driving the van eight hours before the explosion.
Moosh’s testimony however, provided some levity to the
seriousness of the trial and cast a long shadow on the substance of
the government’s case against Mohammad. This is how Precht
described the courtroom scene:
“Then came the crucial moment. The prosecutor wanted to prove that it was Salameh and [co-defendant] Abouhalima whom Moosh had seen that night. Given that the witness had recognized their photographs in the FBI interview, the prosecutor had good reason to be optimistic. He asked Moosh to look around the courtroom and see if he recognized the man who drove the Lincoln. The atmosphere of the courtroom suddenly seemed to change. As Richard Bernstein of the New York Times described it, the trial took on the air of a television quiz show when everyone in the audience knows the right answer and waits in suspense for the contestant to respond.
Moosh left the stand and ventured toward the defense table. He peered at the defendants. Then he looked beyond us to the press benches in the back of the courtroom and looked over the reporters covering the trial.
“Look all over,” the prosecutor urged.
“Objection!” Abouhalima’s counsel screamed.
Moosh spun his head in the direction of the objection and looked at the redheaded defendant. He skimmed the defense table again. He glanced at the jury. He looked at me. Then he turned toward the jury box. He appeared to fixate on it. Resolute now, he strode up to the left side of the box and stopped six feet from the startled jurors.
Moosh stared at Juror No. 6, a man with blond hair sitting in the front row. He took one step toward him. Another juror, sitting right behind him, began to wave his arms frantically. Moosh raised his arm and pointed: “It was a person such as this.”
“The record should reflect that he was pointing at Juror No. 6,” Judge Duffy said.
Showing remarkable composure, the prosecutor told Moosh to return to the stand and resumed his questioning as if nothing had gone wrong. He asked Moosh to identify the yellow van’s driver [allegedly Mohammad]. Again Moosh left the stand and repeated his movements of a few minutes ago. He looked at the defendants. He looked at me. He looked out at the spectators. Then, like a heat-seeking missile, he darted toward the jury box.
“It was a person like this one,” Moosh said, pointing to a man with a beard.
“Indicating Juror No. 5,” Judge Duffy said.
The government asked for a sidebar conference, and the lawyers for both sides gathered around the judge. The defense argued unsuccessfully that the damage Moosh’s identification had inflicted on the government’s case warranted a mistrial. 2
Since Mr. Moosh had obviously not seen Mohammad [or co-defendant Abouhalima] before his appearance in court, one question raised by his testimony is whether the prosecutors misrepresented the circumstances of his alleged identification of Mohammad from a picture during his pretrial interview by the FBI. Particularly because it is known that Moosh identified two other men from FBI photos who were known to have had nothing to do with the WTC explosion.
The government’s only evidence that Mohammad had ever been to the WTC was a parking ticket dated February 16, 1993 – 10 days before the explosion – that a New York City police crime lab technician claimed had Mohammad’s fingerprint on one side and was blank on the other side. 3 The ticket was among thousands collected by WTC ticket booth attendants prior to the explosion that were examined by investigators. However the parking ticket was fishy for several reasons:
• It was magically “discovered” after the trial had begun and holes in the government’s case against Mohammad had been exposed.
• Since a parking ticket must be pulled from the ticket dispensing machine, it would have a person’s thumb-print on one side and their index (or another) fingerprint on the other side.
• When the parking fee was paid and the ticket handed to the parking booth attendant, the attendant would need to grab both sides of the ticket to hold it. That would smudge or otherwise obscure the prints of the person paying, by imprinting on both sides of the ticket, the attendant’s prints on top of the payers. However the fingerprint technician’s testimony was that Mohammad’s fingerprint only was clearly visible on one side of the ticket that was blank on the other side.
Precht writes that he considered raising the possibility that the incriminating fingerprint evidence was manufactured on a random ticket by the crime lab. But he explains that he didn’t think any of the jurors would believe New York’s crime lab would do that. However that claim is puzzling because just the year before – in 1992 – it was reported in the press that for the previous eight years technicians with the New York State Police Crime Lab had routinely been forging fingerprint evidence in serious felony cases and perjuriously testifying about it. 4 Innocent defendants in murder cases were among the more than 40 cases in which forged fingerprints were planted on incriminating evidence. Additionally, the jurors were New Yorkers who had been exposed to decades of news reports about endemic New York police corruption. See e.g., Peter Maas’ book Serpico and the movie by the same title that starred Al Pacino. So it is troubling that Precht suggested he didn’t think the jurors wouldn’t believe a New York City crime lab technician would forge fingerprint evidence or commit perjury testifying about it in court.
In addition, a federal judge ruled in 1991 (two years before Mohammad’s trial) that the fingerprint testimony in a California bank robbery case was too unreliable to be considered as evidence and barred its use. 5
So Precht had powerful ammunition on which to base a serious challenge to the alleged “parking ticket” fingerprint evidence, which was almost certainly fabricated. However instead of vigorously defending Mohammad by doing that, he timidly let the government introduce the evidently forged fingerprint evidence and sat on his hands as the prosecution claimed it substantiated their theory that Mohammad made a pre-explosion reconnaissance visit to the WTC.
Precht also explains the contrived nature of the government’s only evidence supporting its theory the yellow van rented by Mohammad was in the WTC’s parking garage before the explosion. Two days before he testified, a Secret Service agent told prosecutors that he saw a yellow van in the WTC’s parking garage on the morning of the explosion. 6 The agent had made no mention of seeing a yellow van during any of his interviews with FBI investigators. His memory became clear for the first time during rehearsals of his testimony with prosecutors. How many letters comprise perjury – seven? However as a star government witness, the Secret Service agent had no fear of prosecution.
So the core of the government’s case tying Mohammad to participation in the WTC explosion consisted of three key pieces of alleged “evidence.”
• A gas station attendant who identified “Juror No. 5” as driving the yellow van eight hours before the explosion – not Mohammad.
• A parking ticket dated 10 days before the explosion that was testified to as having the naturally occurring impossibility of Mohammad’s fingerprint imprinted on one side while being blank on the other side.
• A Secret Service agent who conveniently recollected after meeting with prosecutors two days before he testified, that he saw a yellow van in the WTC’s parking garage the morning of the explosion.
How many letters does it take to spell “prosecution frame-up”?
Ten days after the jury began deliberations, Mohammad and his three co-defendants were found guilty on March 4, 1994. Each was subsequently sentenced to 240 years in prison. Mohammad’s conviction was affirmed on appeal.
Several notable events occurred after Mohammad’s conviction. After being arrested in the Philippines in 1995, Ramzi Yousef and a co-defendant, Eyad Ismoil, were convicted in December 1997 for their alleged role in the 1993 WTC explosion. Mohammad’s judge, U.S. District Court Judge Kevin Duffy presided over their trial, and several of Mohammad’s prosecutors were involved. During that trial the prosecution abandoned its claim that Mohammad had driven the van to the WTC on the morning of February 26, 1993, and asserted that Ismoil was the driver. 7 Both Yousef and Ismoil were convicted. Yousef was sentenced to life and Ismoil to over 200 years. So three years after Mohammad’s conviction, the government officially discredited its claim that he was a participant in the explosion – which confirmed the appearance during his trial that the prosecution had ineptly contrived his participation out of whole cloth.
Another interesting development in 1997 was the Office of Inspector General’s report into irregularities in the operation of the FBI’s crime lab. It concluded that the testimony during Mohammad’s trial by FBI lab technician David Williams that a fertilizer bomb caused the 1993 WTC explosion, was “either downright false or completely unsupported by scientific evidence.” 8 So over 11 years after the WTC explosion, it is not publicly known what caused it.
However whatever type of explosive device was used, it was reported on the front page of the New York Times on October 28, 1993, that FBI informant Emad Salem was an ‘agent provocateur’ involved in the planning of the explosion. He also purchased supplies that could be used to construct an explosive device. Although the FBI did not intervene to prevent the explosion, the Bureau did protect Salem from indictment as a co-conspirator. Precht writes in the book that he knew about Salem’s involvement with the FBI, but he didn’t call him as a witness because he didn’t think it would have helped Mohammad if the jurors’ attention was focused on the fact that the federal government had prior knowledge, and yet allowed the WTC explosion to occur. That is puzzling, because even though the government had a mole that provided intimate details of the planning and execution of the explosion, the prosecution’s case against Mohammad was as flimsy as a flag flapping in the breeze. If Mohammad had actually been a player, the case against him would have been as solid as Gibraltar.
Precht’s book is maddening because he passively defended Mohammad when what he needed was a lawyer with fire in his or her belly to fight tooth and nail for his acquittal. Precht’s performance gave critical observers plenty of reasons to suspect during the trial that he had been bought off by the government. 9 That may be going too far, but Defending Mohammad certainly presents the picture that Precht was the wrong person to represent Mohammad.
However glaringly Precht glosses over possible deficiencies in his representation of Mohammad, it is an important book for what he does say. Precht should be applauded for his candidness, and his willingness to put himself “out there” where he is subjected to criticism within and without the legal profession.
His portrait of Judge Duffy as a “pompous” ass who was primarily concerned with preserving the appearance of impartiality while he was actively aiding the prosecution obtain the conviction of Mohammad and his co-defendants rings true. Judge Duffy’s bias has continued after the trial, since he hasn’t lifted a finger to aid Mohammad after the government’s revelation in Yousef’s 1997 trial that it doesn’t believe he was involved in executing the explosion. Of course to their infamy, neither have the federal prosecutors who orchestrated the facilely contrived scenario at Mohammad’s trial that he was involved in the explosion.
Being assigned to represent a defendant in a case attracting international attention was a blessing and a curse for Precht. He writes: “Salameh was the ultimate underdog, and I was determined to ensure that he received a fair trial before an impartial jury. Unfortunately, the key court actors – judge, prosecutors, and defense lawyers – failed to meet this challenge.” 10 Defending Mohammad is a somber warning that when a person is accused of terrorism, the judgment of everyone involved tends to become clouded by runaway passions and conflicting loyalties. In that environment it is difficult under the best of circumstances for jurors to determine if the prosecution has proved its case against an accused beyond a reasonable doubt. That is particularly true when there are multiple defendants and a person - such as Mohammad - can be victimized by misplaced patriotic fervor and found guilty not because of what he did or didn’t do – but for having been in the wrong place at the wrong time and associating with one or more people who may have been guilty of something. As Precht found to his dismay, the same dynamics affected the affirmation of Mohammad’s convictions on appeal: The appellate judges were unable to look beyond the heinousness of the crimes Mohammad was convicted of to seriously consider whether the government had legitimately met their legal burden of proving his guilt beyond a reasonable doubt.
Precht makes a compelling case that Mohammad Salameh is innocent of having any criminal role in the planning or execution of the 1993 WTC explosion. Yet in spite of his evident innocence, he is prisoner 34338-054 at the highest security prison in the United States – the Federal Bureau of Prison’s Florence ADX. Mohammad is scheduled for release on January 22, 2095, when he will be 127 years old. 11 Robert Precht is no longer a practicing lawyer. He is currently Assistant Dean of Public Service at the University of Michigan Law School.
1 Defending Mohammad at 34.
2 Id. at 95-96.
3 Id. at 90-91.
4 Suspect Identities: A History of Fingerprinting and Criminal Identification, Simon A. Cole, Harvard University Press, 2001, at 274, 279-280. Referring to The NY State Police Evidence Tampering Investigation, Nelson E. Roth, Confidential report to the governor of New York (Ithaca, Jan. 20, 1997).
5 U.S. v. Parks, (C.D. CA), CR-91-358-JSL, cited in Suspect Identities, supra at 272-273. (Judge Letts excluded the fingerprint testimony under the much less stringent Frye standard of admissibility under FREv 702.)
6 Defending Mohammad at 72.
7 Id. at 166-167.
8 Id. at 166.
9 Id. at 152.
10 Id. at ix-x.
11 Information obtained from the Federal Bureau of Prison’s website on August 15, 2004.