SACRAMENTO: A federal magistrate on Friday recommended overturning the controversial 2006 conviction of a California man accused of attending a terrorist training camp in Pakistan and plotting an attack in the United States.

Hamid Hayat, now 36, who was then a young cherry-picker from Lodi, has served about half his 24-year sentence. But US Magistrate Judge Deborah Barnes said he likely never would have been convicted were it not for the inexperience of his defence attorney, who failed to call alibi witnesses.

“A reasonably competent attorney would have done more to investigate Hayat’s alibi,” Barnes said in a 116-page opinion.

Her recommendation that the conviction be vacated now goes to US District Judge Garland E. Burrell Jr. He presided over Hayat’s original trial, conviction and sentencing and previously rejected a defence motion over whether Hayat was properly represented at trial. Either side can appeal Burrell’s eventual decision.

Barnes heard new testimony from witnesses who said Hayat, who was born in California, never had time to receive terror training while visiting relatives and getting married in his ancestral village in Pakistan. Barnes also found that Hayat’s defence attorney, Wazhma Mojaddidi, should have put on evidence from an expert on false confessions who could have countered prosecutors’ claim that Hayat confessed.

Inexperience of defence lawyer led to the conviction, says judge

Mojaddidi, an immigration and family law attorney who was trying her first criminal case, said she “passionately represented Hamid Hayat as a young attorney and worked with a great team of lawyers and investigators in his defence.”

She said in a statement that she always believed he was innocent and was elated by Barnes’ recommendation.

Prosecutors are reviewing the magistrate’s recommendation, US Attorney McGregor Scott said. “It has consistently been our position that Mr Hayat received effective representation at trial and that his conviction by a jury, subsequently affirmed by the Ninth Circuit, is completely valid,” he said in a statement.

One of the three appellate judges dissented when the court upheld Hayat’s conviction in 2013, saying jurors erred in convicting Hayat based on predictions of what he might have done.

Hayat’s attorneys said Barnes’ opinion goes beyond finding that his conviction should be overturned. “The judge found the testimony of the alibi witnesses sufficiently credible to conclude that Hamid would likely not have been convicted if the jury had heard these witnesses,” they said in a statement.

“That is effectively a finding of actual innocence.” Investigators initially claimed five men were part of an Al Qaeda “sleeper cell” in the agricultural community south of Sacramento. But federal prosecutors eventually deported three of the men without charges, while Hayat’s father, an ice cream truck driver, admitted only to a customs violation after a jury couldn’t decide whether he lied to federal agents about his son’s activities.

Only Hayat was convicted in 2006 of providing material support to terrorists and lying to FBI agents. Prosecutors alleged that he had a “jihadi heart” and plotted attacks on hospitals, banks, grocery stores and government buildings.

Critics have held the case out as an example of investigators’ and prosecutors’ overzealous approach to the Muslim community after the 2001 terrorist attacks.

“The prosecution took advantage of post-9/11 hysteria to convict him,” Basim Elkarra, executive director of the Sacramento Valley office of the Council on American-Islamic Relations, said in a statement.

The FBI paid an informant $230,000 over three years to infiltrate a Lodi mosque and record conversations with imams and worshippers after he improbably claimed to have seen several high-ranking Al Qaeda officials there in the late 1990s. The informant encouraged Hayat to attend a training camp while he was in Pakistan.

His attorneys said Hayat’s eventual confession was coerced during a marathon FBI interrogation and that the terror training camp was closed during the time in 2003 and 2004 when prosecutors said Hayat was purportedly there for three to six months. He was arrested shortly after returning to the United States in 2005.

Published in Dawn, January 13th, 2019