Gov't won't appeal decision to ban witness in NY

NEW YORK –  The U.S. government announced Sunday it would prosecute the first Guantanamo Bay detainee to face a civilian trial without its star witness because appealing a judge's ruling excluding him could cause significant delay and inconvenience other witnesses and victims.

Besides, the government said in a letter to U.S. District Judge Lewis A. Kaplan, there was enough evidence without the star witness to convict Ahmed Khalfan Ghailani of conspiring in 1998 to blow up two U.S. embassies in Africa, killing 224 people, including a dozen Americans.

The decision by the government not to appeal clears the way for the trial to resume Tuesday, when opening statements are expected to begin after a jury is chosen from a pool of about 65 potential jurors in Manhattan.

In the letter, Assistant U.S. Attorney Michael Farbiarz said the government disagreed with the judge's decision and would have appealed it under different circumstances. But he said many trial witnesses had planned to come to New York based on the long-scheduled date of the trial and some might even be unwilling or unable to return if the trial faced a significant delay.

He said many victims have already arrived in New York after a long wait to see Ghailani face trial after having traveled significant distances.

"An appeal at this juncture would obviously cause a delay — a delay of uncertain, and perhaps significant, length," the letter said. "Weighing all of the circumstances, the government does not wish to delay the trial in order to take an appeal."

The judge had handed the government a significant setback days earlier when he ruled that the star witness, Hussein Abebe, a former cab driver from Tanzania, could not testify that Ghailani bought explosives from him. The judge said the government learned about Abebe when Ghailani underwent a coercive interrogation at a secret CIA-run camp overseas.

"The court has not reached this conclusion lightly," the judge wrote in his decision. "It is acutely aware of the perilous nature of the world in which we live. But the Constitution is the rock upon which our nation rests. We must follow it not when it is convenient, but when fear and danger beckon in a different direction."

During that hearing, defense lawyer Peter Quijano tried to show that Abebe felt coerced to testify because he feared law enforcement, but Abebe insisted that was not so.

Another lawyer for Ghailani, Steve Zissou, said the government's decision not to appeal was "a significant victory for the Constitution."

"As we saw during his testimony, Mr. Abebe was hardly a credible witness," Zissou said.

Ghailani has been accused by the government of being a bomb maker, document forger and aide to Osama bin Laden. He has pleaded not guilty and has denied knowing that TNT and oxygen tanks he delivered would be used to make a bomb.

There was little controversy when Ghailani was brought to New York for trial in 2009, but the subject of where to try detainees from Guantanamo Bay, Cuba, became heated after Attorney General Eric Holder announced last November that professed Sept. 11 attacks mastermind Khalid Sheikh Mohammed and four others would be tried blocks from where the World Trade Center stood. Holder later said he was reconsidering the decision.

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Associated Press writer Larry Neumeister contributed to this story.

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Defendant in Deadly Home Invasion Said He Was Pressured to Kill, Witness Testifies

One of two Connecticut men charged with killing a woman and her two daughters in a 2007 home invasion told another inmate he killed the mother after being pressured to do so by the other suspect in the case, a prison officer testified Tuesday.

Jeremiah Krob recounted the conversation in New Haven Superior Court at the trial of Steven Hayes, who along with Joshua Komisarjevsky is charged in the killings of Jennifer Hawke-Petit and her daughters, 17-year-old Hayley and 11-year-old Michaela. Prosecutors have said Hawke-Petit was strangled and her daughters died of smoke inhalation after the men set the house on fire.

Krob said Hayes recounted that he had taken Hawke-Petit to a bank to withdrew money while her family was held captive at their Cheshire home. When they returned home, Hayes put her in the den, Krob said. He was pacing between that room and the living room when Komisarjevsky told him he had to kill her, Krob recounted.

"Hayes said he didn't know if he could do it," Krob said, but told the other inmate he did kill her when he saw police cruisers outside the house.

Krob's account followed testimony by a state police detective who said Hayes gave an emotionless confession in which he told authorities how he sexually assaulted the mother after Komisarjevsky told him he had to -- to "square things up" -- because the other man already had sexually assaulted one of the girls.

Krob said he overheard the inmates' conversation in 2008 because Hayes was under suicide watch and being continuously monitored.

The officer testified Hayes said Komarisarjevsky, who is still awaiting trial, sexually assaulted Michaela, took cell phone pictures of her that he tried to e-mail to friends and doused her in gasoline. Krob said Hayes admitted pouring gas on the stairs but told the other inmate he didn't believe he could be charged with arson because he didn't light it.

Both prosecutors and defense attorneys rested their cases Tuesday. The defense called two witnesses and read a statement from Hayes' mother, Diane, who said Hayes left her house the night of the crime after saying he was waiting to hear from Komisarjevsky, who was putting his daughter to bed.

A Cheshire police officer called by the defense said he was on the scene for about 15 minutes when he saw the men fleeing the house. The officer said he tried to enter the house to rescue any occupants, but the fire was too intense.

The other defense witness testified it took him about 20 minutes to get from the Petit house to a nearby town where Hayes bought gasoline, according to earlier testimony.

It's not clear why Hayes' attorneys called those witnesses, but they have emphasized Komisarjevsky's role, reminding the jury of the period when Hayes was out of the house.

Krob also testified that the other inmate asked Hayes if he believed Dr. William Petit, who was beaten with a baseball bat but survived the attacks on his family, was in on the scheme to get an insurance payment. Hayes said he thought about it and believed it was possible because he was surprised Petit had been able to free himself after being tied up. Hayes said he wondered if Komisarjevsky had loosened the knots to help him escape.

After Tuesday's court session, Petit's father-in-law, the Rev. Richard Hawke, said the words were "cruel and out of place."

"A person has to be very insensitive to make a statement of such a man who has spent his life trying to build his family to be the greatest family he or you would ever know," Hawke told reporters, CTnow.com. "They had the opportunity to live out this greatness for a short time."

Petit also responded to the testimony, saying, "I really can't dignify that insinuation with a response." 

Authorities have never suggested Petit had any involvement. Petit testified earlier that he awoke on his couch the morning of the attacks and found two people standing near him, one holding a gun. He said he was beaten with a baseball bat, his wrists and ankles bound, and was tied to a post in his basement. He managed to free his hands, get up the stairs and crawl and roll to a neighbor's house.

Earlier Tuesday, state fire investigator Paul Makuc testified that a gas-fueled arson blaze spread "in a very rapid, quick and violent manner" through the Petit house.

Makuc said the fire was so intense that firefighters had to retreat when they tried to enter the house. He said the blaze began in a family room where Hawke-Petit's body was found and quickly spread to the second floor into the girls' bedrooms. He earlier described evidence of the accelerant poured on Michaela and around Hayley.

Three plastic containers with gasoline traces were found in the house -- including one under Hayley's body in a second floor hallway where she had fled, Makuc said.

Under cross-examination, Makuc said the tests do not tell him who poured the gasoline.

Hayes gave an emotionless confession to a state police detective in which he said he went out and got the gas and had sexually assaulted Hawke-Petit, according to earlier testimony.

Jack Hubball of the state forensic lab testified the containers had gas and that tests confirmed gas on the clothes of Komisarjevsky and Hayes as well as on debris taken from the staircase.
Closing arguments are scheduled for Friday.

If Hayes is convicted, the same jury would weigh whether he should receive the death penalty in a separate penalty phase. Komisarjevsky goes on trial next year.

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The Associated Press contributed to this report 

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