In making a hangman's noose gesture, the jury foreman of a Lodi man's terror trial "compromised the integrity of the case," a fellow juror told a federal judge Friday.
Arcelia Lopez, of Sacramento, explained in detail how she says foreman Joseph Cote make the gesture. She also said Cote said "Hang him" from the second day of the two-month trial through deliberations.
Her 20-minute testimony, which ended in a struggle to contain her emotions, contradicted Cote's own statement under oath a week earlier, in which he denied ever making such a gesture.
Lopez was the final hold-out juror during nine days of deliberations in Hamid Hayat's case, but she eventually agreed to find the Lodi man guilty. Now 25, Hayat remains jailed after being convicted in April 2006 of providing material support to terrorists and lying to the FBI.
His defense has sought a new trial. U.S. District Judge Garland E. Burrell Jr. has the option of granting the defense request, which would lead to a new trial, or denying it and sentencing Hayat to as much as 39 years in prison.
Burrell gave no indication of when he would rule on the defense motion for a new trial, or if he will call any other jurors to testify.
Defense attorney Dennis Riordan said Friday that he is certain the jury would not have reached a verdict if Cote had not been biased.
A separate jury failed to reach a verdict in the case of Hayat's father, Umer Hayat, who accepted a plea deal to unrelated charges and was released from custody.
After taking an oath to tell the truth in Burrell's Sacramento courtroom, Lopez said the first time she saw Cote make the hangman gesture was on the second day of trial during a break in the private jury room.
"He put his hands up at this level," Lopez said, raising her hands to her neck and then moving them behind her head, "rotated them to the front, clenched his fists and moved his right hand upward as if to further tighten the rope."
As he did so, Lopez testified, Cote said, "Hang him."
She did not remember the day's testimony, but Riordan later pointed out that jurors that day had watched a videotaped interview between Hayat and FBI agents. Over the course of a number of hours on June 5, 2006, Hayat told agents various stories of his recent trip to Pakistan, changing the story at times when they asked further questions.
Cote made the gesture a number of times and later mentioned Hayat's name after the gesture, Lopez said Friday.
"For him to show such a gesture I thought was unfair," she said. "I thought it compromised the integrity of the case."
The judge asked if she thought the action was wrong and Lopez responded: "I know it was wrong."
When Burrell asked why she didn't tell him about the gesture, Lopez said that it was a mistake on her part. Burrell further asked why she didn't mention it during the rest of the trial, and Lopez paused at length, fighting to hold back tears.
"I don't have an answer for that," she said in a tearful voice. "I just know that I was wrong in not reporting it."
After she was excused from court, government prosecutors questioned Lopez's recollection, and pointed to the fact that she voted to convict Hayat.
"Ms. Lopez has regrets about her decision, she has remorse about her decision - no doubt this was a tough decision for all concerned," Assistant U.S. Attorney Robert Tice-Raskin said. "But her remorse and her regrets have impacted her ability to recollect events during the trial."
Had the noose gesture been so important, Tice-Raskin argued, Lopez would have told the judge about it. He also reminded Burrell of the day Lopez, a nurse, was ill and asked Burrell's courtroom deputy if she could sit apart from other jurors so they wouldn't get sick.
"This was a woman who knew how to speak up," Tice-Raskin said. "She knew how to speak up when she thought she was ill and might affect others."
Lopez's allegations came one week after Cote denied ever making the gesture, and Riordan told reporters after court that testifying was not likely easy for the woman.
"It's not easy for someone to sit in a courtroom - knowing that what she is saying is about to be reported throughout the area - and say that she was wrong," he said.