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NYPD, FBI Squabble Could Benefit Pimentel's Defense


For the past week, the New York Police Department and the FBI have been at odds over a terrorism case. It involves an American of Dominican descent; he's expected to be indicted on state terrorism charges, but not on federal ones. New York police say he was an al-Qaida sympathizer planning to bomb targets in the city. The FBI declined to get involved because it did not consider him a threat. Law enforcement officials on both sides have been airing the dispute over the case publicly, and that could help the accused build a defense. NPR's Dina Temple-Raston reports.

DINA TEMPLE-RASTON, BYLINE: Just how serious the Jose Pimentel case is depends on who you talk to. When the New York police commissioner, Raymond Kelly, announced the arrest, he said that Pimentel was just an hour away from making a bomb.

RAYMOND KELLY: As in other terrorist cases, Pimentel's behavior morphed from simply talking about such acts to action, namely bomb building.

TEMPLE-RASTON: The NYPD showed a video of the damage Pimentel's bomb might have done -- if his pipe bomb actually worked, and it isn't clear that it would have. A short time after the arrest, federal officials anonymously told reporters that Pimentel barely had the money to buy the crude materials he needed for the bomb -- matches, Christmas lights, and sugar. The federal officials also expressed doubt about whether Pimentel could have built anything without the help of a New York Police Department informant.

This was the whispering campaign. But for anyone who didn't get that message, the FBI's conspicuous absence from the press conference that announced the arrest spoke volumes.

JUAN ZARATE: That signals something, that there's probably a disagreement in terms of the nature of the case between the federal and local authorities.

TEMPLE-RASTON: That's former deputy national security advisor for combat and terrorism Juan Zarate.

ZARATE: And that seems to be the case here.

TEMPLE-RASTON: Each day since the arrest, there have been new public revelations about the case, questions about Pimentel's mental stability, the credibility of the NYPD informant. Apparently the informant and Pimentel had gotten high while the investigation was going on. Each revelation may end up as a problem for the prosecution and an advantage for the defense.

DAVID LAUFMAN: It's now a matter of public record that the FBI did not believe this case had prosecutorial merit.

TEMPLE-RASTON: David Laufman is a Washington, D.C. defense attorney who used to prosecute terrorism cases for the Justice Department.

LAUFMAN: And if this case goes to trial, an aggressive defense attorney will likely do everything possible to get that information in front of the jury in an effort to persuade the jury that the defendant lacked the intent and capacity to commit the crimes he's charged with.

TEMPLE-RASTON: Laufman said that the district attorney will also have to address the fact that the FBI didn't think much of this case.

LAUFMAN: The government will likely argue to the court that whatever happened between the New York Police Department and the FBI was simply intramural bureaucratic squabbling and that it should be excluded from evidence.

TEMPLE-RASTON: Laufman said all these mitigating circumstances will help Pimentel's attorneys make the case that they NYPD coerced him into a crime he wouldn't have otherwise committed. That's an entrapment defense.

LAUFMAN: Many defendants try to make them, they almost invariably fail, but this may be a case as the facts unfold where the defense may have stronger arguments than other cases.

TEMPLE-RASTON: The entrapment defense does more than invariably fail in terrorism cases. It has always failed. The number of terrorism cases that have been dismissed on entrapment grounds since 2001 is exactly zero. Some federal officials worry that this case may be the first. Dina Temple-Raston, NPR News, New York. Transcript provided by NPR, Copyright NPR.

Dina Temple-Raston is a correspondent on NPR's Investigations team focusing on breaking news stories and national security, technology and social justice.