Hamid Hayat juror says she was pressured to change her vote

Defense asks for new trial in light of juror's declaration

The foreman who guided Hamid Hayat's jury to a guilty verdict was racist, and he harassed the lone dissenting juror until she changed her mind, the juror wrote in a declaration Thursday.

In her seven-page statement, Arcelia Lopez said the foreman decided the case before he heard the evidence and commented on media coverage of the Lodi man's terrorism trial. On the second day of the nine-week trial, he "gestured as if he was tying a rope around his neck and then pulling the rope in an upward motion" and said, "Hang him," Lopez wrote.

The affidavit, filed Thursday evening in U.S. Eastern District Court, was included in defense attorney Wazhma Mojaddidi's motion for a new trial, based on jury misconduct.

Lopez could not immediately be reached for comment, and a message left earlier Thursday at her Sacramento school nursing office regarding the general trial was not returned.

Jury foreman Joseph Cote did not return messages left on an answering machine at his Folsom home.

A federal jury on Tuesday convicted Hayat, 23, of providing material support to terrorists and three counts of lying to the FBI — charges that carry a sentence of up to 39 years in prison.

His father, Umer Hayat, 48, was on trial with him but had a separate jury that deadlocked on his two charges of lying to the FBI about his alleged knowledge of terror training camps. Umer Hayat will return to court Friday, when attorney Johnny Griffin III will ask a judge to set bail while waiting to learn if prosecutors will take him back to trial.

In her Thursday filing, Mojaddidi also asked the judge to address her motion for a new trial at Friday's proceedings.

Hamid Hayat's jurors deliberated for most of nine days, which included a second viewing of his videotaped interviews with FBI agents. During the June interviews, he voluntarily described various camps in Pakistan but also appeared to repeat things FBI agents told him.

Lopez said the foreman made "racial slurs" during deliberations, at one point saying "that they all look alike. If you put them in the same costume then they all look alike."

A black juror said the comment was inappropriate and another asked the foreman to apologize; he later did so.

Before the trial began, jurors were instructed to avoid media coverage of the trial and to avoid discussing it with anyone. Judge Garland E. Burrell Jr. repeated the instruction daily.

But, Lopez said, a local newspaper was in the deliberation room and when she said it was inappropriate, a fellow juror said that it was in the courthouse so it was OK. In addition to housing courtroom, the 15-floor courthouse is home to a number of public offices and departments, ranging from probation to the U.S. Attorney's Office.

Later, when a juror was dismissed midway through trial for unrelated personal reasons, the remaining jurors discussed her "15-minute interview" and said they might be able to find the interview in a newspaper, Lopez said.

That wasn't the only media concern, Lopez alleged: The foreman commented on a TV report, saying his wife was watching the news in another room and he overheard it.

After the trial ended, Lopez said, she was the only one who thought Hamid Hayat was not guilty. The foreman accused her of not having the "mental capacity to understand" the case and told Lopez she should "process the evidence with a slant toward guilt," Lopez wrote.

In all criminal proceedings, jurors are told that a defendant is innocent until proven guilty and that the burden of proof falls on the prosecution.

The foreman, though, wasn't the only one who was frustrated that Lopez was holding out, and she said the stress caused her to go to the doctor Saturday. A nurse advised Lopez that she may want to go to the emergency room because she was having migraine headaches.

When jurors reconvened Monday morning, Clements juror Rebecca Harris began reading a typed note that was several pages long and had taken her the entire weekend to write, Lopez said. Harris said she had begun drinking and overeating due to stress and "then began to state that all of the stress was my fault because I refused to change my vote," Lopez said.

Harris could not be reached for comment Thursday.

In the meantime, Burrell sent a note to the jury room, in response to a message the foreman had sent the judge last Friday shortly before jurors adjourned for the weekend. The foreman's note, which the judge initially sealed but then released after the trial ended, read: "There is impasse with a juror who does not seem to fully comprehend the deliberation process. I'm available to discuss this with you and counsel at anytime."

Burrell responded simply by instructing the jury to keep deliberating, and that's when Lopez learned of the foreman's note to the judge. She was shocked but the foreman said, "I'm the foreman. I'm in charge. I can do what I want," Lopez wrote in her declaration.

Lopez said she told her fellow jurors that they didn't have to reach a unanimous verdict, but the pressure did not let up.

"At this point I was under so much stress and pressure that I agreed to change my vote," she said.

She was visibly upset during the reading of the verdicts and that, combined with the foreman's previous note to the judge, made Mojaddidi suspect that one juror had been holding out. In her own declaration, Mojaddidi said she had not previously suspected any jury misconduct.

Several jurors reached Thursday evening declined to comment, and others did not return messages. Hearing of Lopez' allegations, juror Mark Varno said he did not want to comment but repeated what he previously told the News-Sentinel: "I know we did a good job."

Contact reporter Layla Bohm at layla@lodinews.com.

First published: Thursday, April 27, 2006