THE SCOTSMAN
08/08/2001

by Alan Dershowitz

THERE are few crimes more heinous than the deliberate destruction of a civilian airliner carrying hundreds of innocent travellers. This is especially so when such terrorism is state-sponsored. That is why all civilised people continue to be outraged by the blowing up of Pan Am 103 over Lockerbie. It is understandable, therefore, why such commendable efforts were made to bring the perpetrators of this horrible crime to justice.

But what if the wrong person was convicted of so heinous a crime? What if the real perpetrators remain free? These questions haunt many legal scholars and close observers of the recent trial in the Netherlands under Scottish law, which resulted in the conviction of Abdelbaset al-Megrahi, and the acquittal of Khalifa Fhimah.

After reading the decision of the court, I became concerned not only that the legal standard of proof beyond a reasonable doubt had not been met, but that the wrong person may well have been convicted of the crime and the real mass murderer may not have been charged. This is why I agreed to consult with the British lawyers who are appealing this case. My consultation is limited to the one issue of whether al-Megrahi's guilt was established beyond a reasonable doubt. My interest in this case is solely to assure that the right persons are properly convicted and that the wrong person has not been improperly convicted.

A critical issue on this appeal will be how to determine whether the governing legal standard - "proof beyond a reasonable doubt" with "evidence from a single source [being] insufficient" - has been met in a case in which "a major factor" is the identification "evidence" of a single eyewitness. This issue is complicated by the court's acknowledgement that the identification here was "not an unequivocal identification", and there were "undoubtedly problems" with it, including that it was preceded by several inconsistent descriptions and the identification of an unrelated suspect with motive, means and opportunity to have committed the crime. It was also preceded by the witness having been shown a suggestive magazine article about the case which contained a photograph of the appellant as a suspect.

The most important "corroboration" of this eyewitness identification is the court's allegedly independent "conclusion" that Mr Gauci sold the incriminating items of clothing to the perpetrator on 7 December, 1988 (a day when the prosecutor alleged appellant was in Malta), rather than on 23 November, 1988 (a day for which the prosecutor has no evidence of his whereabouts). Yet this alleged "conclusion" is nothing more than a guess, built on a series of speculative inferences. The eyewitness himself had no idea which of these two days was the one on which he made the sale. Indeed, he could only narrow it down to a recollection that it was a midweek day at a time when Christmas decorations were "going up" and it was drizzling and his brother was watching football on TV.

"Mr Gauci's rather confused recollection" regarding the day of the purchases was magically transmogrified into a firm "conclusion" of the court that "the date of the purchase was Wednesday, 7 December". Not only is this not a valid legal "conclusion"; it is against the weight of the evidence and would not have been reached if the trial court had not been aware that the prosecution had no evidence that appellant was in Malta on 23 November.

Consider the following experiment. Select ten judges who are unfamiliar with this case. Show them all the evidence regarding the date of the purchase other than the evidence that appellant was in Malta on one of the days but not on the other. Ask them if they are able to "conclude" on which day the purchase was made. If they cannot, then it becomes clear that the court's conclusion that the purchase was made on 7 December cannot independently corroborate the other evidence.

In summary, here are the weaknesses of the prosecution case:

1. Without the equivocal and suggestive "identification" by this "single source", the evidence against appellant would not approach proof beyond a reasonable doubt. Indeed, it would not be materially stronger than the evidence against the other accused, who was acquitted, or against the independent and alternative suspect, who was not brought to trial on this charge (Abu Talb of the PFLP-GC).

2. The identification evidence, standing alone, does not satisfy professional standards for an acceptable eyewitness identification.

3. Each of the alleged items of independent corroboration is either not independent, not reliable or not corroborative.

4. The court erred - as a matter of basic science, logic and common-sense - in the manner by which it "combined" or "added up" each of the unreliable, unconvincing, problematic and equivocal items of evidence to come up with a "sum" of proof beyond a reasonable doubt. Most reputable scientists would conclude, on the basis of the totality of the evidence in this case, that it is nowhere near 90 per cent likely, which is the widely accepted minimum quantitative equivalence of proof beyond a reasonable doubt, that appellant was the person who bought the incriminating clothing in Malta.

5. The trial court's fundamental error was in the manner by which it added the evidence together, without properly discounting for its inaccuracy, to "fit [it] together to form a real and convincing pattern". It confused the standard for forming a reasonable suspicion on which to base an investigation (does the available evidence, if it turns out to be true, fit together to form a suspicious pattern?) with the very different standard for conviction (is the evidence, discounted by its inaccuracy, inconsistent with any reasonable hypothesis of innocence?)

6. Here, the evidence, while raising some suspicion, is entirely consistent with a reasonable hypothesis of innocence. It is reasonably possible that the incriminating items of clothing were bought on another day, when appellant was not in Malta. It is reasonably possible that Mr Gauci sold the clothing to Abu Talb, to another Libyan, or to yet another person who more closely fits his initial description.

7. When two or more unlikely events are added together, they do not produce a degree of likelihood that meets the exacting standard of proof beyond a reasonable doubt.

8. The risk of error is especially high in this case, because even if it could be proved conclusively that appellant was the man who purchased the clothing - which cannot be done - that would not prove his ultimate guilt conclusively, since there are other gaps in the prosecution case, especially its inability to offer "any explanation of the method by which the primary suitcase might have been placed on board KM 180", which "is a major difficulty for the Crown case" and "must be considered along with the rest of the circumstantial evidence ..."

9. In other words, even if this court were to conclude that it is 90 per cent likely that it was the appellant who bought the clothing - a kind of certainty that would fly in the face of science, mathematics and common-sense - that 90 per cent would still have to be discounted by the other "major" and significant difficulties in the case.

All democracies share a common commitment to the principle that is far better for ten guilty people to go free than for one innocent person to be wrongly convicted. This principle applies at least as forcefully to a conviction for the most heinous of crimes as it does for ordinary crimes.

Alan M Dershowitz, a leading American defence lawyer, is a professor at Harvard Law School and also an author.
 

Wednesday, 8th August 2001
The Scotsman