Terrorist asks for a new trial

SACRAMENTO -- An expert witness testified Tuesday that defense counsel was "flying blind" during the 2006 trial of a Lodi man convicted on terrorism charges.

On the second day of an evidentiary hearing expected to last three weeks, Hamid Hayat's legal team laid the groundwork for their ineffective counsel claim by questioning a pair of attorneys with extensive experience in federal criminal cases. U.S. v. Hayat, 2013 DJDAR 3192.

Hayat was arrested after spending two years in Pakistan, from 2003 to 2005, on suspicion of traveling back to the United States to carry out terrorism missions. Under interrogation, he confessed to training at two terrorist camps in Pakistan. He was convicted of giving support to terrorists and lying to the FBI in earlier questioning and was sentenced to 24 years in prison.

His new legal team is led by Dennis Riordan, a partner with Riordan & Horgan in San Francisco known for taking on cases against prosecutors and prisons. Riordan and his colleagues have painted a picture of an uneducated, unsophisticated defendant who confessed under duress.

The focus of the case, however, is the work done by Hayat's original defense attorney, Wazhma Mojaddidi, who they say was far too inexperienced at the time of the trial to provide an effective defense. Mojaddidi, who has not been accused of wrongdoing and remains an active attorney in Sacramento, had passed the bar less than three years before Hayat's trial.

In the afternoon session, Riordan asked Daniel J. Broderick -- who served as Eastern District public defender from 2006 to 2012 -- how he would have handled a prosecution like the one Hayat faced.

Broderick replied that, at minimum, he would have appointed a senior public defender, an assistant, a paralegal and an interpreter. He noted that the other side included three federal prosecutors, "a number of FBI agents," and a "vague indictment" that would be difficult for a novice to fight.

"Do you think a lawyer could learn on the job in a case like this?" Riordan asked.

"If you set the trial 10 years from now, maybe," Broderick replied.

Broderick noted that even attorneys who have extensive experience in state courts can sometimes run afoul of the evidence code and other procedures in federal court.

Earlier in the day, another member of Hayat's team, Martha A. Boersch with Boersch Shapiro LLP in Oakland, went down a similar line of questioning with John D. Cline.

Cline is a San Francisco-based private attorney with extensive experience defending clients facing federal prosecutions. He testified he was co-counsel in the defenses of former U.S. government employees Oliver North, Scooter Libby and Wen Ho Lee.

His testimony centered on the use of the Classified Information Procedures Act, a 1980 federal law governing the use of classified information in a trial.

The act contains numerous provisions designed to balance the government's need for secrecy with a defendant's right to a fair trial. A trial like the one Hayat faced, Cline said, would require a defense team that not only understood the act but included an attorney with a security clearance that would allow them to view classified information during discovery.

"Without a clearance, defense counsel could not get access to otherwise discoverable information," Cline said. "The defense counsel is essentially flying blind."

Much of the middle part of the hearing involved the prosecution's cross-examination of Jaber Ismail, Hayat's Pakistani cousin. Ismail testified that at the time Hayat was allegedly training, the two were often at a relative's house in Rawalpindi playing the video game "Grand Theft Auto" and talking about "girls in the village who could be potential brides."

Assistant U.S. Attorney Andre Espinosa attempted to poke holes in Ismail's timeline. But he repeatedly ran into cultural differences as he questioned Ismail on Hayat's whereabouts over a decade ago on key days like birthdays or New Year's Day.

"Birthdays are not a big thing in our culture," Ismail said, later adding that New Year's Day "is just another day."

Ismail portrayed Hayat as someone who would have tried to impress people by telling tall tales about his life in America.

"He just wanted to be a different type of person that he wasn't," Ismail said.