Attorney can keep representing man convicted of terrorism charge, judge rules

SACRAMENTO — A federal judge overseeing the ineffective counsel claim of a man convicted a decade ago of training to be a terrorist has denied a government motion to kick the defendant’s lead attorney off the case.

Government attorneys argued that Hamid Hayat’s attorney, Dennis P. Riordan, is also an important witness in proving Hayat’s claims.

But U.S. Magistrate Judge Deborah L. Barnes ruled last week that Hayat’s legal team has taken the appropriate steps to allow Riordan to offer limited testimony on his conversations with Hayat’s original defense attorney.

Attempts to reach Riordan last week were unsuccessful. But when contacted in October, Riordan had a strong opinion about the motion to bar him from the case.

“The government is doing everything possible to prevent the truth coming out about what happened at Hamid Hayat’s trial,” Riordan said. “Their attempt to disqualify me is consistent with their objective.”

In a separate portion of her Dec. 27 order, Barnes barred testimony from a Pakistani journalist. Ghulam Hasnain Aaser was expected to testify that the camps where defendant Hayat allegedly trained were closed at the time he was supposed to have been there.

“Petitioner fails to show Aaser qualifies as an expert under the standards of admission,” Barnes wrote. She went on to say Aaser failed to qualify as a percipient witness because he only personally observed one of the camps in question. Aaser’s claim that the other camp was also closed was based only on information allegedly given to him by “unnamed members of militant groups he met in other areas.”

Hayat, then 22, was detained in 2005 while trying to fly back to the United States after spending two years in his native Pakistan because his name appeared on the federal No Fly List. After several hours of intense questioning, he confessed on video that he had spent time between 2003 and 2005 training at a pair of terrorist camps in Pakistan.

In 2007, he was sentenced to 24 years in prison. U.S. v. Hayat, 2013 DJDAR 3192.

In 2014, a new team of lawyers filed an ineffective counsel claim on Hayat’s behalf. The group, led by Riordan — an appellate specialist with Riordan & Horgan in San Francisco — said Hayat confessed under duress.

His inexperienced attorney in the original case, they claimed, failed to call several alibi witnesses who could have shown that Hayat could not have trained at the camps.

In October, Barnes ordered that two Pakistani men should be allowed to serve as alibi witnesses. The men are expected to testify that they saw Hayat frequently in areas far from the camp when he was allegedly training.

Just before that order, federal prosecutors filed another motion to bar several other witnesses and to remove Riordan from the case.

Government lawyers want to question Riordan about inconsistencies in statements made to him in conversations with Wazhma Mojaddidi, Hayat’s original counsel. Alternately, they sought to exclude Riordan’s testimony. Mojaddidi is also expected to take the stand.

The motion rests in part on the American Bar Association’s Model Rules, which state, “A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness.” The government argued that allowing Riordan to appear as “both witness and attorney will turn the hearing into a ‘farce.’”

In her latest order, Barnes said Riordan’s testimony fit under the permissible exceptions to the rule.

“Riordan will not draft written arguments or orally argue any matter related to his credibility,” Barnes wrote. “Because Riordan’s percipient testimony may be important to considering both the issues of conflict of interest and Mojaddidi’s reasonableness, the court will allow him to testify and remain as petitioner’s counsel.”

Barnes went on to allow testimony by several other witnesses as well. This includes a key expert witness.

Dr. Richard Leo, “an expert on the psychological aspects of interrogation techniques and false confessions,” will be allowed to testify that an expert hired by Mojaddidi was not qualified.

Leo is a psychology professor at the University of San Francisco School of Law who has testified 270 times in state and federal courts, according to Barnes’ ruling.