In what legal experts are calling one of the first cases of its kind, a Sacramento federal courtroom stayed open until 10 p.m. two nights last week to take live video testimony from Pakistani witnesses 7,353 miles away.
All four Pakistanis testified as alibi witnesses in the evidentiary hearing on whether to free Lodi cherry picker Hamid Hayat, who has spent 12 years in prison after being convicted in 2006 of lying to the FBI and providing assistance to terrorists.
Hayat’s legal team, led by criminal appellate specialist Dennis Riordan, has been fighting for years to prove that he never attended a terrorist camp in Pakistan and was coerced into confessing during two days of grueling interrogation by the FBI.
The hearing conducted by U.S. Magistrate Judge Deborah Barnes began three weeks ago and focused on what Hayat’s attorneys contend was his false confession and the failure of his then-attorney, Wazhma Mojaddidi, to provide adequate counsel, including interviewing potential witnesses in Pakistan who could exonerate Hayat.
Central to their argument is the fact that Mojaddidi was unfamiliar with Rule 15, which allows witnesses who can’t appear in U.S. court to be interrogated and give sworn depositions in their home countries or to testify via video conference.
The live Pakistani witnesses, including two uncles, an aunt and a lifelong friend, testified last week they spent large chunks of time with Hayat from April 2003 to May 2005, when he visited Pakistan to get married and help his mom get medical treatment for Hepatitis C.
They also testified that Hayat was either at his ancestral village of Behboodi or visiting his grandparents in Rawalpindi, and was never gone long enough to have undergone terrorist training.
Judge Barnes arranged for her courtroom to remain open last Wednesday and Thursday nights, and the court’s IT director Richard Arendt set up TV screens and established a secure internet connection. Several interpreters fluent in Urdu and English were brought in, along with a court reporter.
At 6:30 p.m. on Valentine’s Day, 7:30 a.m. Islamabad time, the defense began interviewing their first witness via video conference.
The U.S. Attorney’s Office, which is fighting to uphold Hayat’s conviction, opposed allowing the testimony of the overseas witnesses, saying there is no realistic way to ensure they aren’t lying.
“The government cannot extradite a person to the United States and charge that person for committing perjury in Pakistan when the lies are told in Pakistan,” said federal prosecutor Andre Espinosa. “There is no certainty, there is no guarantee, there is no protection for the integrity of this process.”
Espinosa also argued that swearing in the witnesses under an American oath would be meaningless, and under Pakistan’s Islamic law, “women are not competent to testify in legal proceedings.”
Despite his arguments, Barnes ordered the unusual hearing to go forward.
On Thursday night – Friday morning in Pakistan – a man with a large salt and pepper beard and gold rim glasses, Dr. Fahim Ud Din, testified that Hamid Hayat was his wife’s nephew. Fahim, who said he was a pediatrician, said Hayat was a shy youth who had a hard time making decisions “and was always behind the other boys, even his younger brother would defeat him in a fight.”
In March 2000, Hayat became very sick with a fever and was ultimately taken to Shifa International Hospital in Islamabad, where he was diagnosed with acute meningitis. “He was weak before and now he was weaker,” Fahim said. After a week in the hospital, Hayat improved and went back to Lodi.
Hayat returned to Pakistan around 2003 and got married in the winter of 2004, Fahim testified. “I would see him every week or 10 days, he couldn’t get out from his home alone.”
Fahim said Hamid’s “memory was reduced and he appeared scared. He would be in the house playing video games, and when he was bored he would play cricket with his friends.”
Fahim’s wife, Tayyaba Fahim, also testified via video conference. Under cross examination by federal prosecutor Roger Yang, she admitted her brother was politically active in the state of Punjab, but said he had never gone to Afghanistan to wage jihad against the Russians. Tayyaba Fahim said she could not remember specific days or holidays when she spent time with Hayat and his mom, or what video games he was playing on his laptop.
She acknowledged that her father ran a madrasa, or religious school, in Rawalpindi “for approximately 18-19 years,” but said his students “absolutely did not go” to terrorist training camps. She said that while Hayat had attended another madrasa in Rawalpindi to memorize the Koran, there was no expectation that he would train to become an imam like his grandfather.
Both sides will submit briefs for the judge, which should be completed by the end of May.
Veteran Sacramento criminal attorney Bill Portanova Sr., who is not involved in the Hayat case, said that in 36 years of practice this is the first time he has seen witnesses cross examined from overseas in a federal case. “It’s an extraordinary procedure,” he said. “It seems to make so much sense, we can expect to see more of it in the future. You can ask yourself why this wasn’t done at trial.”
If Judge Barnes finds that Hayat did not receive a fair trial, as the defense contends, then her recommendation will go to the original trial judge, District Judge Garland E. Burrell Jr., for consideration, Portanova said. If Burrell agrees that the conviction is invalid, the government can either appeal or retry the case.
If Burrell lets the conviction stand, Hayat can appeal to the 9th Circuit Court of Appeals.