MILNET:

MILNET Brief
Discovery Hearings for Lodi Terrorism Suspects Umer and Hamad Hayat
Updated 6/27/2005

Overview

Hamid Hayat, and his father, an ice cream vendor named Umer Hayat, were present on two days in U.S. District Court before Federal Magistrate Judge Peter A. Nowinski. The hearings allowed the prosecution and defense to debate technical details concerning the evidence used to obtain arrest and search warrants and any other information relevant to the government's case against the defendants. In the case of the Hayats, Judge Nowinski approved a motion to place the evidence would be under Protective Order, sealed until such time as disclosed in the actual trail, to prevent any adverse pre-trial publicity as well as to protect against possible exposure of evidence that may not ultimately be allowed in the trail.

Discovery Phase

The point in the trial process where each side attempts to determine how strong the other's case is. The discovery phase consists of interrogatories, depositions, and admissions. In some cases, the discovery phase can lead to dismissal or perhaps ultimately a change in plea at the next hearing, a status hearing. A key element in this phase is full disclosure of all relevant evidence to be used if the case goes to trial.

Details

On Friday, 6/24/2005, in a meeting in the Judges Chambers (Peter A. Nowinskit, prosecutors, defense attorneys, with press present), the government provided documents and compact disks that contained what they claim is the relevant evidence in the case, with some evidence being noted as later search warrant data that may indeed be later deemed Classified under the Classified Information Act of 1996. The Judge's protection order allowed on the attorneys to review the information and prohibited disclosure to anyone else.

On Monday, 6/27/2005, in Courtroom 25 of the District Courthouse in Sacramento, Federal Magistrate Peter A. Nowinski presiding. U.S. Attorney Stephen Lapham was joined by Deputy U.S. Attorney Robert Tice-Paskin who had also attended the previous discovery hearing that had been scheduled in chambers. The defense complained that not all the evidence that the FBI and the Department of Justice had gathered had been turned over to the defense, prompting a lengthy sidebar discussion. As a result, the Judge required the prosecution and defense to agree that while some of the evidence might be used later as the charges were expanded, the government would only be obligated to provide the evidence relevant to that expansion only at the time they chose to actually expand the case.

The defense claimed that the government should be required to proof that what the two were lying about in the three counts of the indictment was actually true, while the government argued that at this time, all they need prove is that the men lied to federal agents during their investigation. At some point later, and if the government chose to expand their case and levy new charges, then at that time the burden of proof would change -- that point had not yet come. After some debate, with Judge Nowinski occasionally displaying a keen sense of humor and patience and a sidebar discussion, ruled that the government need only present data at this time that applied to the indictment charges specifically, the act of lying to federal agents.

The defense also requested clarification of the Protective Order, with Judge Nowinksi at times showing a little frustration at the pedantic nature of the requests and discussion, finally ordering the two sides to agree on a written order that would allow copying by a select group in the defense team as well as allowing the defendants, both together, to work with the defense team while viewing the video or documents under the protective order. The only exception was the material in the search warrants that had not already been made public and was deemed to possibly fall under Classification requirements -- the defense attorneys and team would not be able to disclose that to the defendants.

Also present at both disovery hearings, was former FBI Agent and Private Detective, James J. Wedick. Mister Wedick has been retained by Johhny Griffin to aid the defense in anaylyzing the evidence (some 55 pages and 9 CDs) turned over by the government. Griffin was very clear as to his desire and intention to disclose the evidence to Wedick, in fact becoming a little pedantic until Judge Nowinski responded to the outright request with "So ordered".

Appearing for the first time in the case, was Robert Tice-Paskin, sitting with the U.S. Attorney, Steven Lapham. We will endeavor to discover his connection with the case.

Analysis

It is clear from the dialogue between the defense, judge and prosecution, that while this case is ultimately about possible terrorism, that the government is only prepared to move forward with the 3 count indictment dealing with lying. It is also abundantly clear that the defense wishes an early look at any other evidence, including overseas and local interviews by all federal agencies that might apply to a terrorism charge. The government is unwilling, and so far Judge Nowinski has demonstrated that they are not going along with that plan.

It is also clear that the government is in fact in possession of a lot more material that might be used in a terrorism case, and this is very obviously worrying the defense. Hovering in the background of the relatively minor charges (in comparison to terrorism charges that is) is a darker picture and the much more serious capital offenses that might be levied by the government. For one, aiding and supporting terrorist activities, specially terrorist training camps and Jihadist training, could net the two decades or even the death penalty according to the provisions of the Anti-Terrorism and Death Penalty Act of 1996.

In addition, the government may also tie together a larger conspiracy, which will only add to the compelling nature of the evidence, and perhaps pile on numerous additional charges each with ten to twenty year sentences.

While Johnny Griffin appears confident and at times victimized by the governments reticence to provide information he has requested, the FBI is continuing to conduct an investigation and has the right to withhold information which is relevant to the ongoing investigation which is not covered by the indictment and arrest warrant which has led to current situation.

The defense may not like that, but as Judge Nowinksi said in court (paraphrasing), "...the definition of what is relevant may not meet with your definition, the government may never-the- less withhold that which it believes is not relevant. If you continue to have trouble with their definition, make an attempt to iron that out and if you still can't come to an agreement, we'll meet in chambers and I will help you to come to an agreement." This essentially ended the quibbling and prepared the way for the next phase of the process, a status hearing before Judge Garland E. Burrell at 9:00 am on July 1.

Judge Denies Bail for Terror Suspect, Don Thompson, The Associated Press, found in The Desert Sun, Palm Springs, CA., 6/11/2005
Federal Judge Denies Bail to California Terror Suspect, A.P., BroadbandReports.com, 6/10/2005
Pakistan: Terror Camps Scatter, Persist, Jihad Watch, 6/20/2005
Lodi Teen Shares Thoughts on Arrests of Five Local Men, Sara Caradine, Sentinel, 6/10/2005