Judges’ Lockerbie opinion “legally threadbare”

[On this date in 2001 an article by Alexander Cockburn headed Justice Scotched in Lockerbie Trial was published in The Nation. It reads as follows:]

There’s a famous passage in Lord Cockburn’s Memorials of His Time where the great Scotch judge and leading Whig stigmatizes some of his Tory predecessors on the bench, including the terrible Lord Braxfield, who presided over what Cockburn called “the indelible iniquity” of the sedition trials of 1793 and 1794. “Let them bring me prisoners, and I’ll find them law,” Cockburn quotes Braxfield as saying privately, also whispering from the bench to a juror he knew, “Come awa, Maister Horner, come awa, and help us to hang ane o’ thae daamned scoondrels.”

Braxfield most certainly has his political disciples on the Scottish bench today, in the persons of the three judges who traveled to the Netherlands to preside over the recent trial of the two Libyans charged with planting the device that prompted the crash of Pan Am Flight 103 over Lockerbie in 1988. In the first criticism of the verdict, Hans Koechler, a distinguished Austrian philosopher appointed as one of five international observers at the trial in Zeist, Holland, by UN Secretary General Kofi Annan, has issued a well-merited denunciation of the judges’ bizarre conclusion. “In my opinion,” Koechler said, “there seemed to be considerable political influence on the judges and the verdict.”

Koechler’s recently released analysis of the proceedings, in which the judges found one of the two accused Libyans, Abdelbaset Ali Mohmed al-Megrahi, guilty while exonerating his alleged co-conspirator, Al Amin Khalifa Fhimah, is by no means an exercise in legal esoterica. Basically, he points out that the judges found Megrahi guilty even though they themselves admitted that his identification by a Maltese shop owner (summoned by the prosecution to testify that Megrahi bought clothes later deemed to have been packed in the lethal suitcase bomb) was “not absolute” and that there was a “mass of conflicting evidence.”

Furthermore, Koechler queries the active involvement of senior US Justice Department officials as part of the Scotch prosecution team “in a supervisory role.”

Assuming a requisite degree of judicial impartiality, the prosecution’s case absolutely depended on proving beyond a reasonable doubt that Megrahi was the man who bought the clothes, traced by police to a Maltese clothes shop. In nineteen separate statements to police prior to the trial the shopkeeper, Tony Gauci, had failed to make a positive identification of Megrahi. In the witness box Gauci was asked five times if he recognized anyone in the courtroom. No answer. Finally, the exasperated prosecutor pointed to the dock and asked if the man sitting on the left was the customer in question. Even so, the best that Gauci could do was to mumble that “he resembled him.”

Gauci had also told the police that the man who bought the clothes was 6 feet tall and over 50 years of age. Megrahi is 5 feet 8 inches tall, and in late 1988 he was 36. The clothes were bought either on November 23 or December 7, 1988. Megrahi was in Malta on December 7 but not on the November date. The shopkeeper recalled that the man who bought the clothes also bought an umbrella because it was raining heavily outside. Maltese meteorological records introduced by the defense showed clearly that while it did rain all day on November 23, there was almost certainly no rain on December 7. If it did rain on that date, the shower would have been barely enough to wet the pavement. Nevertheless, the judges held it proven that Megrahi had bought the clothes on December 7.

No less vital to the prosecution’s case was its contention that the bomb that destroyed Pan Am 103 had been loaded as unaccompanied baggage onto an Air Malta flight to Frankfurt, flown on to London, and thence onto the ill-fated flight to New York. In support of this, prosecutors produced a document from Frankfurt airport indicating that a bag had gone from the baggage-handling station at which the Air Malta bags (along with those from other flights) had been unloaded and had been been sent to the handling station for the relevant flight to London. But there was firm evidence from the defense that all the bags on the Air Malta flight were accompanied and were collected at the other end. Nevertheless, the judges held it proven that the lethal suitcase had indeed come from Malta.

The most likely explanation of the judges’ decision to convict Megrahi despite the evidence, or lack of it, must be that either (a) they panicked at the thought of the uproar that would ensue on the US end if they let both the Libyans off, or (b) they were simply given their marching orders by high authority in London. English judges are used to doing their duty in this manner–see, for example, the results of various “impartial” judicial inquiries into British atrocities in Northern Ireland over the years.

In closing arguments, the prosecution stressed the point that Megrahi could not have planted the bomb without the assistance of Fhimah – that both defendants were equally guilty, and should stand or fall together. Nevertheless, the judges elected to find one of the two conspirators guilty and the other one innocent, a split verdict that Koechler finds “incomprehensible.” It is however entirely comprehensible if we accept that the judges knew there was no evidence to convict either man but that it was politically imperative for them to send one of them down for twenty years and thereby pass the buck to the appeals court. Given the legally threadbare nature of the judges’ eighty-two-page “opinion” justifying their actions, many observers are assuming that the five-man panel of judges who will eventually hear Megrahi’s appeal will have to do the right thing. But that is what many of us said about the original trial.