Tracy Press

New evidence could mean innocence

Layla Bohm/San Joaquin News Service Wednesday, 01 November 2006

A startling interview with the jury foreman in the Hamid Hayat case gives defense lawyers hope for a new jury trial.

LODI — Before any jury trial begins in the United States, prospective jurors are instructed that a defendant is presumed innocent. It’s up to prosecutors to prove guilt “beyond a reasonable doubt,” and the potential jurors are asked if they can abide by that rule.

Hamid Hayat’s terrorism trial last year was no exception, and the 12 jurors who heard the Lodi man’s case raised no objections to jury rules. But the foreman who led them to a guilty verdict later said publicly that it was better to risk convicting an innocent man than to acquit a guilty man.

“Too many lives are changed” by terrorism, John Cote said in an interview published this month in The Atlantic Monthly. “So shall one man pay to save 50 It’s not a debatable question.”

He also told the reporter that he did not want to see the government “lose its case,” and that the issue was not whether a crime had been committed, but whether Hayat was capable of committing it.

“Can we, on the basis of what we know, put this kid on the street ... On the basis of what we know of how people of his background have acted in the past The answer is no,” he told the reporter.

Cote’s statements are among a number of items defense attorneys are using to bolster their argument that Hayat, now 25, deserves a new trial.

In the 106-page motion filed Friday night, accompanied by a number of affidavits and supporting documents, attorneys Wazhma Mojaddidi, Dennis Riordan and Donald Horgan also cited other reasons. They accuse the jury foreman of being racist and making a decision of guilt long before the trial was over. They argue that the defense was not allowed to present rebuttal witnesses and they say that new evidence could back Hayat’s claims of innocence.

Prosecutors said they would respond in their own court filing, which is due in December.
After a two-month trial, a federal jury convicted Hayat on April 25 of providing material support to terrorists, as well as three counts of lying to the FBI. He faces a sentence of up to 39 years in prison, but U.S. District Judge Garland E. Burrell postponed his sentencing when Mojaddidi said she would file a motion for a new trial.

Prosecutors never showed actual proof that Hayat attended a terrorist training camp in Pakistan, instead relying on his own interviews with FBI agents. He and his father voluntarily drove to the FBI office in Sacramento in June 2005, and Hayat denied attending a camp during hours of interrogation. He ultimately talked about a number of camps and agreed when asked if he saw various things.

Attorneys cited 25 “terms and concepts” that agents used before Hayat ever mentioned them, including various types of training at the camp, being taught to kill Americans and Jews, and martyrs and suicide-bombers attending the camp.

False confession
Attorneys questioned whether Hayat, who had a sixth-grade education in the United States, wrongly.

Hayat’s attorneys wondered whether he “was a poorly educated and weary defendant unaware of the gravity of his situation, falsely assented to a series of incriminating propositions suggested by his interrogators in a misguided effort to gain his release through cooperation with the authorities.”

During trial, Mojaddidi wanted to explore that idea by calling private investigator James Wedick, who spent 34 years with the FBI before retiring from the Sacramento field office not long before the Hayat case broke.

Even after the trial, Wedick maintains that agents did not question Hayat in a way that would get reliable answers and that they fed him the answers rather than asking open-ended questions.
Burrell, however, ruled that defense attorneys had already been able to question other FBI agents about their techniques and that Wedick would not offer anything new.

Other new evidence includes the testimony of Jaber Ismail, Hayat’s cousin who was born in Lodi, had traveled to Pakistan and was not allowed to return because he was on a “no-fly” list. Attorneys said he could have backed Hayat’s initial statements to the FBI — that while in Pakistan, he hung out with friends, traveled with his mother while she received medical treatment and never attended a terror training camp.

No al-Qaida ties
When Hayat was arrested in June 2005, the case brought national media attention to Lodi. The government said he and his father, Umer Hayat, were tied to two local Muslim religious leaders, who in turn were linked to al-Qaida.

U.S. Attorney McGregor Scott, whose office prosecuted the case, has since said there was never an al-Qaida cell in Lodi.

Lodi’s religious leaders were never prosecuted, and Umer Hayat pleaded guilty to a charge unrelated to terrorism after his jury could not reach verdicts on two counts of lying to the FBI. He was sentenced to time already served and was released from custody earlier this year.

Prosecutors have until Dec. 15 to file their response to the defense motion for a new trial, and the matter is currently scheduled to be argued Jan. 19 in Burrell’s Sacramento courtroom.

The defense also asked for a hearing regarding whether jurors engaged in misconduct.

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