Judge clarifies instruction for Hamid Hayat jury

Defense suggests sequestering jurors if one panel reaches a verdict first

A judge handed Hamid Hayat's defense a small victory Thursday morning when he gave deliberating jurors a new instruction that the Lodi man is only charged with providing support to terrorists "in the form of personnel or training."

In the meantime, the judge presiding over the dual-jury trial of Umer and Hamid Hayat is still deciding what to do if one jury returns a verdict before the other jury finishes deliberations. The defense even raised the idea of sequestering jurors.

Which jury will finish deliberations first is not known, though a note from Umer Hayat's jury late Thursday afternoon indicates that their deliberations will stretch into next week.

On Wednesday, jurors had asked in a written note if 23-year-old Hamid Hayat's secretly recorded talk of sending money to Pakistan could "constitute" material support, the most serious charge he is facing.

But prosecutors never accused him of sending money, and it is not a charge handed down by the grand jury that indicted both Hamid Hayat and his father, Umer Hayat. Aside from that August 2003 telephone conversation with FBI informant Naseem Khan, there has been no other evidence that any money actually changed hands.

After discussing it with attorneys and pondering the matter overnight, U.S. District Judge Garland E. Burrell Jr. revised a jury instruction and told Hamid Hayat's jurors that he is charged with providing material support in the form of "personnel" or "training."

The material support is the first of four charges Hamid Hayat is facing, and later Thursday his jurors had another question regarding the second count. In that charge, he is accused of lying to FBI agents who visited him at his home in Lodi on June 3.

Jurors asked if the agents were required to tell Hamid Hayat of his legal rights and, after consulting with attorneys, Burrell said that was a matter for the judge to decide rather than the jury, defense attorney Wazhma Mojaddidi said.

The question could indicate that jurors have moved on from the first charge and are now deliberating the lying charges, which allege that Hamid Hayat denied knowing about and attending terror training camps in Pakistan.

Hamid Hayat's jurors will return today to the federal courthouse in Sacramento for their seventh day of deliberations.

His 48-year-old father's jury received the case a day after Hamid Hayat's, and they will begin their sixth day of deliberations today.

On Wednesday, Umer Hayat's jurors had asked to see transcripts of trial testimony from three FBI agents who interviewed him. The judge told them the testimony would be read in open court and asked them to decide which portions they wanted to hear, but the jurors then spent all of Thursday behind closed doors.

Shortly before leaving at 4:30 p.m., jurors finally gave the judge their response. They asked, "asap," for all the testimony of agents Tim Harrison and Sean Wells, as well as the cross-examination of lead case agent Pedro Tenoch Aguilar, defense attorney Johnny Griffin III said.

Burrell told attorneys that the court reporter will not be ready to read the testimony until Monday morning at the earliest, Griffin said.

By Thursday evening, Burrell was still considering a prosecution motion asking him to seal the verdicts until both juries had reached decisions.

Griffin argued against such a ruling, saying it wouldn't be fair to keep his client in jail "one second longer" than necessary if the verdict acquitted Umer Hayat.

Assistant U.S. Attorney Robert Tice-Raskin asked the judge to seal the verdict without telling either side the results, so the deliberating jurors wouldn't accidentally hear about the verdict.

"There are news media individuals that have closely followed the trial, and they are in this courtroom right now," he said as prosecutor David Deitch looked at reporters in the audience and smiled while counting them.

If a juror heard the outcome, that could require the judge to replace the juror, which would start deliberations all over again, Tice-Raskin told the judge.

Burrell is aware of the media coverage, and said his clerk has received calls from media crews asking about verdicts so they have an idea when to bring satellite trucks to the downtown courthouse.

Griffin even raised another possible solution: "I don't like using this word, but there's always sequestering of jurors."

If jurors were sequestered, they would not be allowed home until reaching a verdict and likely would be put in a hotel where news coverage and outside contact could be monitored.

Contact reporter Layla Bohm at layla@lodinews.com.

First published: Friday, April 21, 2006