San Francisco Chronicle - (Sunday)
PART THREE
Hamid’s last hope for freedom rested in a 127-page legal document.
The habeas corpus petition represented years of digging by his appellate lawyers, a group that had expanded to include Martha Boersch, a former federal prosecutor. The team completed the petition in early 2014, a few days before Riordan sent the urgent email to Hamid.
To win a federal habeas challenge, a prisoner must show that his trial was so flawed that the errors actually changed the verdict. This is extremely hard to do, which is why the vast majority of petitions fail. But habeas proceedings allow judges to consider new evidence. And in rare cases, they can change a prisoner’s fate.
The petition argued that Hamid’s trial attorney, Mojaddidi, hadn’t adequately defended him, presenting new testimony to highlight her purported errors. The centerpiece was a stack of statements from alibi witnesses who did not get an opportunity to speak at the trial — friends and family who had been with Hamid overseas and said he could not have attended a terror camp. Several of the witnesses still lived in that country; Jaber, Hamid’s cousin, and Raheela, his youngest sister, also gave declarations.
The petition also argued that Mojaddidi should have found experts on false confessions and the But Hamid’s lawyers didn’t just focus on the performance of a young attorney. They challenged the judgment and honesty of the Justice Department, writing that the government “either knew, or should have known, that Hamid was entirely innocent” — and imprisoned him anyway. Attorney Layli Shirani, who worked on the petition, said, “It’s always been what the government did that was the real problem.”
In particular, Hamid’s lawyers argued that the government must have known there wasn’t a terrorist camp in Balakot during the period when they claimed Hamid attended it. “Obviously, the FBI had the capacity to easily visit that site and search it with a finetooth comb,” the team wrote. So why did the jury only see a few inconclusive aerial photos? Did the government withhold other aerial photos that would have damaged its case — revealing, for instance, that no terror camp existed or no training was conducted? And if U.S. agents didn’t go to the site in person, why not?
Before filing the habeas petition in court, Hamid’s team had emailed the document directly to federal attorneys, giving the government a chance to simply walk away. “This is outrageous,’” Riordan said he told prosecutors in a follow-up phone discussion. “Why don’t you just agree to set aside the conviction?”
Though they declined that offer, the prosecutors did float an idea for a deal to Riordan:
If Hamid agreed to plead guilty to a lesser terrorism-related charge, he could potentially get credit for time served — and go free within a few years. Perhaps even months.
Riordan and Boersch flew to the Phoenix prison to consult with their client. The attorneys told Hamid they had a good shot at winning his release without cutting a deal. But it was a risk. The judge who would make the ultimate decision, Burrell, was the same one who had sentenced Hamid and tossed his appeal.
Hamid didn’t need to think long.
“I’ve now lost my wife,” Hamid told them. “I’ve waited in prison for nine years. And I’m not gonna say anything that isn’t true.” He would maintain his innocence — and take his chances, one more time, in court.
Initially, for obscure procedural reasons, the case landed on the bench of a magistrate judge 150 miles north of Sacramento, in Redding. Justice Department attorneys, including Scott and his subordinates, responded to the petition with a slew of challenges to get it dismissed, arguing that Mojaddidi did a “zealous and competent” job for Hamid. They said the government didn’t share onthe-ground images of the camp because no one had tried to inspect it — “United States government officials cannot waltz into an anti-American militant camp” — and Hamid’s lawyers were merely speculating about the existence of other aerial photos, according to prosecutors.
Two more years passed in a slow grind of motions and counter-motions. The judge moved slowly and sided with the government on most issues.
In September 2015, Riordan was diagnosed with colon cancer. He didn’t tell Hamid he was sick, not wanting his client to worry. Riordan had been 58 when he originally took the case; now he was 67. A surgeon removed a piece of his colon. He began chemotherapy.
“We faced many setbacks,” SampsellJones, Riordan’s colleague, told me, “but Dennis was indefatigable. Some of the rest of us probably would have given up if not for him.”
For almost a decade, little had gone right for Hamid in the justice system. But now he
began to catch some lucky breaks, starting with the 2016 retirement of the Redding judge.
The case was reassigned to a newly appointed magistrate, Deborah Barnes of the Eastern District, which includes Sacramento. A graduate of UC Berkeley’s law school, she had worked on both sides of the criminal justice system, as a Sacramento County prosecutor and a federal public defender. Her job was to weigh all arguments and make recommendations to Burrell, the court’s senior judge. And in 2017, to the delight of Hamid’s team and over the strenuous objections of federal attorneys, she said she would grant an evidentiary hearing. Hamid could call new witnesses. A door that had been slammed shut for years was thrown open.
In the courtroom, Riordan approached the judge. He had recently learned that his cancer was spreading. He was about to begin a new round of intensive chemo and the outcome was uncertain. Telling Barnes he was “concerned about my continuing availability,” Riordan asked if the hearing could be scheduled as soon as practically possible.
When the moment arrived, in January 2018, Barnes allowed four witnesses to testify via video link from Islamabad, which had never been done before in the district. To accommodate the difference in time zones, she kept the Sacramento courtroom open until midnight. Jaber, Hamid’s cousin, and Raheela, his youngest sister, also testified.
One by one, the witnesses explained that Hamid had never left his friends and family to attend a camp in Pakistan. During crossexaminations, federal attorneys questioned their memories and motives. None of the witnesses appeared rattled, least of all Raheela.
She had been 10 when Hamid was arrested. She was now 23.
In one exchange, the DOJ implied she might be lying to protect her brother.
“You don’t want him to be in jail; is that right?” the government lawyer asked her. “Yes,” she said.
“And you would do whatever you could to help him. Isn’t that right?”
“I would do anything for my brother except to lie on behalf of him.”
Hamid was coming back from lunch when the prison guard who had served in Iraq beckoned him into the unit office. “I need you to clean up this mess right here,” the officer said.
Hamid saw there was no mess. “Got you, sir,” he said. Playing along, he grabbed a broom, pretending to sweep the floor. The officer went to his computer, pulling up a news article about the court testimony. He invited Hamid to read it.
“I appreciate you, sir,” Hamid told him, a bit startled by the gesture.
“No, man,” the officer said. “Your chances are looking real good.”
Over the next weeks, Hamid noticed a change in the staff ’s attitude toward him. The habeas petition was sparking fresh coverage of his case, including an episode of “The Confession Tapes,” a documentary series on Netflix. It featured clips of the FBI interrogation that showed Hamid begging to sleep, and when the show aired, it startled some staff at FCI Phoenix.
A prison chaplain confided in Hamid that “there’s a lot of staff members who feel sorry for you,” Hamid remembered. One guard who watched the Netflix series told Hamid, “You really got educated! Your English has improved.”
Hamid, accustomed to judicial delays, thought it might take a while for the system to determine his fate. He had now been incarcerated for almost 13 years, 11 in federal prisons. He had missed the birth of three nieces and nephews, the weddings of his brother Arslan and his sister Raheela, the invention of the iPhone, the spread of Twitter. Ten years had passed since he’d seen his father’s face, one year since he’d held his mother’s hand.
But now, after so much waiting, things began to move quickly.
In January 2019, Judge Barnes released a methodical list of “Findings and Recommendations.” Writing that the government’s case against Hamid had always been “thin,” she said the new alibi witnesses told “consistent,” credible stories about Hamid’s innocence. If Mojaddidi had presented that testimony during Hamid’s trial, the judge said, the result might have been different. Barnes also faulted the lawyer for not presenting experts on false confessions and the prayer in his wallet. These errors, Barnes concluded, violated Hamid’s right to an effective defense, and therefore the district court, led by Burrell, should throw out his conviction.
Hamid had become so used to rejection that he was surprised when Riordan told him about this development. He tried to check his excitement, changing little about his prison routine as he waited six more months.
On July 30, 2019, Riordan was at home on Potrero Hill when he got an alert on his computer that Burrell had made his decision. Riordan opened the opinion, scrolled to the last paragraph, read the magical phrase — “convictions and sentence are vacated” — and felt his body shake.
Though Burrell differed with Barnes on some points, the judge had agreed that a proper alibi defense could have tipped the scales in Hamid’s favor. The trial had been flawed, the conviction wrongful. At minimum, Hamid was entitled to a new trial.
Technically, the ruling didn’t establish Hamid’s innocence, only the ineffectiveness of his trial counsel. Still, Riordan was elated: The result was “as close as you can get” to a finding of innocence, he said, because it was based on alibi evidence that should have seen the light.
Deitch, the trial prosecutor, had left the Justice Department and was not involved in the habeas battle. When he heard about the reversal of Hamid’s conviction, “There was a part of me that was sad to see it undone,” he told me, explaining that no lawyer wants to see his case overturned. If the judges were correct, though — if Hamid was deprived of a fair trial because of his attorney — “then I’m glad it happened,” he said.
Today Deitch specializes in white-collar defense for a D.C.-area law firm. Asked if he still believes that Hamid intended to commit terrorist violence, Deitch said he didn’t know: “We’re human beings, and we never know.”
The moment Riordan received Burrell’s ruling, he alerted the rest of Hamid’s legal team, then sent his client an email. “Hamid, a blessed day,” he wrote, giving him the news. When they connected a few hours later, Hamid kept saying he didn’t believe it. He steadied his hand against the wall by the prison phone.
“As you know I am a religious man, and believe God has a hand in everything,” Hamid emailed Riordan the next day. “In this case I believe he picked the right people for the job. You have brought me to a great understanding. I believe now that there is justice in America.”
Federal attorneys told the court they were mulling their next move. They might appeal the ruling or decide to put Hamid on trial again. In the meantime, though, Riordan filed a request for his immediate release, and the government did not object.
Days later, on Aug. 9, Hamid walked out of the prison wearing a sweatsuit and beard. He dropped to his knees, kissed the ground and prayed.
“I’ve now lost my wife. I’ve waited in prison for nine years.
And I’m not gonna say anything that isn’t true.” — Hamid Hayat
He caught a ride with Carlos Cervantes, an employee of the Anti-Recidivism Coalition, a nonprofit organization that helps people adjust after prison. They pulled over at a rest area for Hamid to pray, then at a Walmart so he could buy a cheap cell phone. As they crossed the Arizona border into California, Hamid requested they stop at a Popeyes. He ordered chicken and biscuits, staring in wonderment at the bounty before digging in.
The next day, Basim Elkarra brought Hamid to CAIR’s office, where his family was waiting. Oma broke down crying as soon as she saw her son. She buried her face in his chest, sobbing, refusing to let him go. He hugged her and kissed her head. Then Hamid embraced Umer, who removed his glasses and wept on Hamid’s shoulder.
The next morning, Oma went to wake Hamid for prayer. She placed her hand gently on his knee.
Hamid opened his eyes. Then he began to scream.
He didn’t know where he was. He didn’t recognize his mother.
After selling the yellow house in Lodi to pay their legal bills, the Hayat family now lived in nearby Stockton. The neighborhood wasn’t as pleasant — a desolate motel stood a few blocks away — but the new house was comfortable, with an apricot tree in the backyard. There was a mosque 50 or 60 steps from the front door.
Hamid never considered returning to Lodi; too many bad memories there. His plan upon release was to stay with his mother temporarily at a place near the family’s house, adjusting to freedom for a few days before he moved in with the whole family. His father’s cousin, Mohammed Saeed, provided an apartment. But Hamid was so accustomed to fenced-in areas that when he saw the building’s open courtyard, he told his mother, “We need to get out of here.”
His parents cleared out an extra room at their home for Hamid, and he put a mattress and his stuff in there. It wasn’t much — a few shirts and a shoebox of assorted items he’d kept from prison. A leather Dallas Cowboys necklace, sewn by a buddy at FCI Phoenix. His well-worn prison Quran. Photos of the friends he’d made. His shorn hair braid, preserved in a baggie.
Hamid was comfortable enough in his new bedroom, but when he ventured out into the house or anywhere beyond, he felt uneasy. In prison, the days had passed quietly. Now everything was sharp and fast and loud.
The few times Hamid tried to venture beyond the Stockton area, he got scared. Driving a car for more than a few minutes made him feel antsy; the traffic was so quick. When his young nieces and nephews visited, running around the house laughing, he could barely stand the noise, and if someone touched him on the shoulder, even his father, “The first thing I do is make a fist,” he said — a defense mechanism he learned in prison.
While it was reassuring to be surrounded by relatives, it was stressful as well. The routines of Hamid’s family members had changed in the 14 years he was away. Living with them was like growing up again.
He did not contact his ex-wife in Pakistan. He did not hear from her, either. It was possible she had remarried; Hamid did not try to find out. What would be the point? If he spoke with her, what would he say?
At night he struggled to fall asleep. He woke from nightmares that he was back in prison. Waves of anxiety hit him out of nowhere, along with compulsions to punch a wall or bash his head against something solid.
In February 2020, the Justice Department decided not to put Hamid on trial a second time. U.S. Attorney Scott asked a court to dismiss all charges, and his office said in a statement that “the passage of time and the interests of justice” persuaded him to leave the case in the past.
Hamid’s advocates felt vindicated: If U.S. officials really believed in their evidence, they wouldn’t just give up. “It tells you everything in the world that the government decided to walk away from this,” appeal attorney Horgan said.
But key figures in the case did not concede errors. As Scott put it to the Sacramento Bee last year, when he left office, the conviction was reversed only because Mojaddidi “had rendered ineffective assistance, not that our case was flawed in any way.” In a recent email, Scott told me, “I’ve said enough about the Hayat case over the years and don’t need to comment any further.”
A spokesperson for the Sacramento FBI office also declined to comment for this story. And the Bureau informant Naseem Khan, who now runs a gift shop in Oregon with his wife and sells his own wood-burning artwork, did not respond to several requests for comment.
Even after the dismissal of charges, Hamid still didn’t believe it was over. He continued to avoid public places, worrying that the FBI was still monitoring him. This fear got in the way of his efforts to resume some kind of normal life, particularly when it came to his religious routine. He felt exposed walking into a place of worship, wondering if there were people like Khan inside. “I don’t know who’s who,” Hamid explained. “For me to put up that face, smiling: ‘Hey, how’s it going?’ It’s hard for me. People are not the same.”
Hamid missed the Muslim brothers at FCI Arizona. It had proved safer for him to practice Islam in prison than in the free world. So he avoided the mosque next to his family’s Stockton home, preferring to pray alone, in his room, or sometimes at a mosque four miles down the highway, where he was more of a stranger.
Hamid’s anxiety peaked in March 2020, when he prepared to get on an airplane for the first time since his 2005 flight from Pakistan was diverted. His cousin was getting married that spring in Buffalo, N.Y., and he wanted to be there. He would go with his mother for about a week.
A month before the trip, Hamid gave Riordan a heads-up, anticipating that he might still be on a government no-fly list. Out of an abundance of caution, Riordan reached out to an attorney he knew at the Justice Department and asked if Hamid would run into trouble. The attorney replied that he had checked with the FBI and learned Hamid was not on any list, Riordan recalled.
Yet when Hamid and Oma arrived at the Stockton airport to board their connecting flight to Los Angeles, Hamid was pulled aside at the check-in counter and made to wait for 45 minutes while security scrutinized his passport.
In a polite voice, Hamid told airline personnel that if there was a problem, he could contact his attorney.
Eventually, he and Oma were allowed to board. However, when they arrived in Los Angeles, security personnel appeared at their side, Hamid remembered, and one agent began recording video with his phone.
This time Hamid got angry, telling the agents, “I know why you guys are doing this.”
“I’m just doing my job,” one replied. “I know, but you’re doing this because of my past,” Hamid said.
He pointed his phone back at them. “Fuck you guys,” he said. “I’m recording you guys too.” They let the Hayats pass.
In Buffalo, Hamid attended the wedding festivities, surrounded by hundreds of people of Pakistani, Indian and Bangladeshi descent. Except for the late-winter chill of upstate New York, he felt like he was back in Pakistan — the vibe was so joyful — and for the first time in years, he let himself relax around strangers.
The only odd moment was when a man he didn’t know approached him and said he recognized Hamid from Netflix. “I know you,” the man said. “You’re like, famous.”
Hamid didn’t think anyone except his relatives would recognize him here, far from home.
“The stress kind of got to me,” he recalled. “It kind of mentally broke me down.”
When it was time to fly back to California, he initially refused to go. He didn’t want the wedding to end. He said he would stay in New York.
Relatives called Riordan and explained the situation, hoping the attorney could help. The two men had kept in touch after Hamid’s release. Riordan had decided to tell Hamid about his cancer, which was now in remission. Hamid had responded by sending Riordan a bottle of black cumin seeds, an anti-inflammatory mentioned in the Quran.
Reaching Hamid on the phone in Buffalo, Riordan told him the pandemic was picking up and he might get stuck in New York if he waited. Finally, Hamid and Oma returned to Stockton.
Goldwasser explained to Hamid that it’s common for people getting out of prison to show symptoms that resemble post-traumatic stress disorder — depression, insomnia, hyper-alertness. Together, over the next months, they found strategies to manage those feelings. “A lot of the work has been focusing on Hamid’s strengths,” Goldwasser told me. “Just his resilience, through his entire incarceration, and how that’s continued out here.”
Establishing new routines became crucial. Goldwasser urged Hamid to keep a schedule. He made sure to wake up at the same time every day, 5:15 a.m., immediately make his bed and do sit-ups — habits from prison. He adopted a black and white rescue cat, naming her Oreo. “She keeps me busy,” he said, “feeding her and playing with her.”
Gradually, he grew braver, venturing outside more often to run errands. With money saved from his prison job, Hamid bought a used Toyota, driving it to therapy and getting used to the speed of the highway.
Before long he took his biggest step yet — applying for the job at Amazon. One of his cousins had worked at the Stockton fulfillment center and suggested that Hamid consider it. Though he was wary at first, assuming the company would toss his application, Hamid passed a background check, signed up, clocked in and embraced the life of an Amazon wage worker.
“It’s helping me develop new skills,” he said, “and I’m grateful.” He realized after a few days that he was struggling to count the merchandise fast enough — if there are 12 diaper boxes in a row on a pallet, and the boxes are stacked four high, how many boxes are there total? — so to improve his math skills, Hamid signed up for a correspondence course and practiced multiplication in his off hours.
As Hamid became friends with several co-workers, playing paintball with a group in their free time, he even began sharing pieces of his story. To his great relief, they expressed sympathy and surprise. The day he felt drained and asked a woman to Google his name, she responded that she couldn’t believe that such a happy-seeming person had been through all of that.
One morning last spring, we met for breakfast at a Denny’s in Stockton. He arrived looking fit and well rested in a San Francisco Giants ballcap, sunglasses, a Tshirt and jeans. We ordered coffee, and Hamid described the events of his morning — getting in a car, driving to a low-end chain diner, sitting in a burgundy booth — as if they were wondrous.
He took a swig of coffee and pointed to the mug: “This is my favorite. Black coffee. I got hooked on it in prison.” As a teenager, Hamid preferred tea. But now, he said, when he tries to drink the tea that his mother makes, it doesn’t taste right.