RUTHFULLY YOURS

In 2006, federal judge Garland E. Burrell sentenced Hamid Hayat of Lodi, California, to 24 years in prison for, as the U.S. Department of Justice explained, “a series of terrorism charges related to his 2003/2004 attendance at a jihadi training camp in Pakistan and his 2005 return to the United States with the intent to wage violent jihad.”

As prosecutors charged, the man with “a jihadi heart and a jihadi mind” intended to target hospitals, banks and grocery stores. Hayat boasted about giving money to Sipah-e-Sahaba, a group that Pakistan declared a terrorist organization. The case was one the first major prosecutions of terrorism in the wake of 9/11.

Nearly 14 years later, judge Burrell, an appointee of  George H.W. Bush, has vacated the sentence and conviction of Hamid Hayat, now 36.  This  action was based not on new exculpatory evidence but what amounted to a post-facto performance review of Hayat’s trial attorney by magistrate judge Deborah Barnes.

In May of 2006, Hamid’s father, Umer Hayat, pleaded guilty to making a false statement to the FBI and United States Customs and Border Protection. He was tried by a separate federal jury but the proceeding ended in a mistrial and Umer Hayat gained release in August of 2006. Hamid Hayat’s attorney Wahzma Mojaddidi, a former CAIR president in Sacramento, contended there was no evidence that Hamid attended a terrorist training camp and pushed for a new trial.

In 2007, federal authorities argued against a new trial, and as their legal brief noted, Hayat claimed that jihad was the duty of all Muslims. In recorded interviews, Hayat gleefully stated he was “so pleased” that jihadis had cut Wall Street Journal reporter Daniel Pearl “into pieces.” Hayat said Pearl “was Jewish” and that as a result of this “good job,” now “they can’t send one Jewish person to Pakistan.”

In 2013, the Ninth Circuit Court of Appeals upheld Hayat’s conviction and in 2014 U.S. District Judge Garland Burrell denied Hayat’s motion for summary judgment to vacate his conviction. Following that ruling, former U.S. Attorney McGregor Scott, who headed the Hayat’s 2006 prosecution, told reporters it was “a righteous prosecution and a just result.”

Hayat’s defenders CAIR and the Muslim Legal Fund of America (MLFA) went shopping for a judge and found magistrate judge Deborah Barnes. A relative newcomer to California’s Eastern District, Barnes spent much of her career in the office of California’s attorney general, where she worked on environmental issues.

Barnes’ June 7, 2017 order raised “serious questions concerning the competency of the defense.”  That was the defense Hayat’s team wanted, led by CAIR rising star Wahzma Mojaddidi, who denied she was to blame for losing the case. The judge wasn’t done, and in January of 2018 Barnes ordered an evidentiary hearing on the Hayat case that proved revealing on several fronts.

Hayat’s new attorneys wanted family members to testify by video from Pakistan. For prosecutors, that raised questions about how the witnesses would be sworn in, and the consequences if they lied.

Barnes’ hearing included two nights of testimony for the Pakistani witnesses, using an encrypted federal court videoconferencing system and an Urdu interpreter. All the witnesses testified that Hamid Hayat was a great guy and could not have attended a terrorist training camp. It remains unclear if any cross-examination took place.

Last January, Judge Barnes submitted a 116-page recommendation that the conviction of Hamid Hayat be vacated, based on the same performance review of Hayat’s attorney Wazhma Mojaddidi, CAIR’s choice to defend him in the first place.  That recommendation went to judge Garland Burrell, whose July 30 ruling contends that Hayat’s attorney, Wazhma Mojaddidi, “provided him with deficient representation.” Therefore, Hayat’s “convictions and sentence should be vacated.”

Sacramento CAIR boss Basim Elkarra told reporters the Hayat case affected “the young generation of Muslim Americans who saw one of their own convicted in a post-9/11 world while completely innocent.” As prosecutor McGregor Scott noted, Burrell had only ruled on the competence of Wazhma Mojaddidi, and did not determine Hayat’s guilt or innocence. At this writing, no appeal has been announced but it seems clear one is needed.

A higher court might have some thoughts about Hayat’s family members testifying from Pakistan by video, in a night session. How these witnesses established their identity, and under what system of law they were sworn in, remains unclear. By all indications, magistrate judge Deborah Barnes believed the Pakistani Muslims told the truth, the whole truth and nothing but the truth. A higher court might have some questions about that, and a lot more.

Two judges accept the claim that Wazhma Mojaddidi was incompetent, therefore her client Hamid Hayat is innocent and should be released. By this reasoning, an incompetent attorney constitutes exculpatory evidence, and a judge’s performance review is sufficient to turn loose a man convicted of “a series of terrorism charges.”  A higher court might have trouble with that, and more, but for Hayat’s legal team it’s a done deal.

According to the Sacramento Bee, the day after Burrell’s ruling, a prison counselor told Hamid Hayat, “start packing your stuff, you’re ready to go home.” If this absurd ruling stands, other terrorists will also be heading home, bringing on more cases of no justice and no peace.