Lodi man wrongly in prison, judge says

Lawyer found lack­ing at ’06 ter­ror­ism trial

San Francisco Chronicle Late Edition - - FRONT PAGE - By Kevin Fa­gan

A fed­eral mag­is­trate judge has rec­om­mended that the ter­ror­ism con­vic­tions that have kept a Lodi man in fed­eral prison since 2006 be over­turned on the grounds that his lawyer didn’t ad­e­quately rep­re­sent him.

Hamid Hayat was 23 when a fed­eral jury con­victed him of train­ing at a ter­ror­ist camp in his fam­ily’s home­land of Pak­istan and returning to the United States to lie in wait for orders to kill Amer­i­cans as a ji­hadi. He is now in a fed­eral prison in Ari­zona and has served half of the 24-year sen­tence he drew.

How­ever, U.S. Mag­is­trate Judge Deb­o­rah Barnes on Fri­day filed her rec­om­men­da­tion that the con­vic­tions be thrown out based on her ex­am­i­na­tions of the case and of tes­ti­mony by more than a dozen wit­nesses and ex­perts. Barnes con­cluded that the fail­ure of Hayat’s trial at­tor­ney, Wazhma Mo­jad­didi, to present the wit­nesses — most of whom are in Pak­istan — de­prived Hayat of a suf­fi­cient al­ibi that would likely have per­suaded the jury not to con­vict him.

Barnes also de­cided that the at­tor­ney should have pre­sented an ex­pert in false con­fes­sions to bol­ster

Hayat’s con­tention that he never at­tended the ter­ror­ist train­ing camp but con­fessed only be­cause he was be­ing ham­mered by lead­ing ques­tions and feel­ing ex­hausted from ex­ten­sive FBI in­ter­ro­ga­tion.

Hayat’s cur­rent at­tor­ney, Den­nis Rior­dan, who has led Hayat’s ap­peals, said he be­lieved his client should go free soon.

“Hamid has spent 14 years in prison on a charge of which he is ab­so­lutely in­no­cent,” he said. “This was a weak case from the be­gin­ning.”

No com­ment could be ob­tained Fri­day from the of­fice of the pros­e­cu­tor, East­ern Dis­trict U.S. At­tor­ney Mc­Gre­gor Scott, be­cause the of­fice is closed un­der the fed­eral gov­ern­ment shutdown.

Other fac­tors cited by Mag­is­trate Judge Barnes in­cluded her con­clu­sion that Hayat’s representation had a con­flictof-in­ter­est flaw: that be­cause Mo­jad­didi was in­ex­pe­ri­enced, she ceded key decision-mak­ing power to the more ex­pe­ri­enced at­tor­ney for his father, Lodi ice cream ven­dor Umer Hayat. The elder Hayat had been ar­rested on sus­pi­cion of ter­ror­ism with his son, but with a more vig­or­ous de­fense pleaded guilty to lesser charges of ly­ing to cus­toms agents and served less than a year in jail.

The case now goes back to the orig­i­nal judge who over­saw Hamid Hayat’s trial in Sacra­mento, U.S. Dis­trict Judge Gar­land Bur­rell Jr., who will rule on Barnes’ rec­om­men­da­tion. The pros­e­cu­tion has 30 days to file ob­jec­tions.

Hayat and his father were ar­rested in June 2005, fol­low­ing a vig­or­ous in­ves­ti­ga­tion of Mus­lims in Lodi that be­gan shortly after the ter­ror at­tacks of Sept. 11, 2001. An FBI in­for­mant had in­fil­trated the small San Joaquin County agri­cul­tural city and fin­gered the Hay­ats as pos­si­ble ter­ror­ism sym­pa­thiz­ers. FBI agents swarmed Lodi and iden­ti­fied the pair as part of an al Qaeda ter­ror­ist cell there.

Hamid Hayat, an Amer­i­can born in San Joaquin County, had been vis­it­ing rel­a­tives in Pak­istan in 2003 and 2004, and was back in Lodi work­ing at a job pick­ing cher­ries at the time of his ar­rest. His father, a na­tive of Pak­istan, had come to the United States in the 1970s and is a nat­u­ral­ized cit­i­zen.

In the years since Hamid Hayat’s ar­rest, pros­e­cu­tors ad­mit­ted there was no al Qaeda cell in Lodi, and ev­i­dence emerged that the ter­ror­ism train­ing camp he was ac­cused of at­tend­ing had been shut down by Pak­istani au­thor­i­ties well be­fore the time he was sup­pos­edly at it.

Barnes’ 116-page decision Fri­day was based on hear­ings she held in Jan­uary and Fe­bru­ary of last year, dur­ing which she heard tes­ti­mony from Hayat’s lo­cal rel­a­tives as well as wit­nesses piped into her court­room by video con­fer­enc­ing from Pak­istan. She also heard from more than half a dozen le­gal ex­perts who shot what she in­ter­preted to be holes in the pros­e­cu­tion’s case on mat­ters such as the con­fes­sion and an Ara­bic say­ing found in Hayat’s pocket, which had been pre­sented as ji­hadi but was in fact a be­nign re­li­gious sup­pli­ca­tion.

“We think the gov­ern­ment has al­ways known from the get-go that he didn’t com­mit this of­fense, but it dug it­self a huge hole when it said al Qaeda was in Lodi,” de­fense at­tor­ney Rior­dan told The Chron­i­cle. “That — the al Qaeda part — was the thing that made this a national case.

“No­body is go­ing to crit­i­cize the em­pha­sis of try­ing to root out ter­ror­ism, par­tic­u­larly after 9/11,” Rior­dan said. “But this is just a case where it got off on the wrong foot and I don’t think any­one was will­ing to take their foot off the gas.”

He said the fam­ily had to sell its house in Lodi to pay le­gal costs, moved out of town, and now lives some­where else in North­ern Cal­i­for­nia.

Hamid Hayat was con­victed of sup­port­ing ter­ror­ists by at­tend­ing an al Qaeda train­ing camp in Pak­istan.

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