CALIFORNIA’S CAIR COLLABORATOR JUDGE DEBORAH BARNES
And her endless quest to free convicted terrorist Hamid Hayat.
January 16, 2019
Last Friday in Sacramento, U.S. Magistrate Judge Deborah Barnes submitted a 116-page recommendation that the conviction of Hamid Hayat be vacated. It was Barnes’ latest attempt to free Hayat, convicted in 2006 of providing support to terrorists, in the first major prosecution of terrorism after the 9/11 attacks.
Barnes’ ruling charges that Hayat’s lawyer Wazhma Mojaddidi, a former president of the Counsel on American-Islamic Relations in Sacramento, put on an ineffective defense for Hayat. After Friday’s ruling, Mojaddidi told the Sacramento Bee, “I am elated to hear that he could be freed soon after unjustly spending so many years in prison.”
Sacramento CAIR executive director Basim Elkarra said in a statement that Hayat “did not receive a fair trial” and Dennis Riordan of Hayat’s defense team opined that Barnes’ ruling was “effectively a finding of actual innocence.” The courts have established otherwise and Friday’s ruling was the latest episode in a long campaign of strange judicial rulings and bizarre courtroom capers.
CAIR and the Muslim Legal Fund of America (MLFA) judge-shopped Deborah Barnes, a relative newcomer to California’s Eastern District. Barnes spent much of her career in the office of California’s attorney general, where she worked on environmental issues. In effect, the judge would become a member of Hayat’s legal team.
Barnes’ June 7, 2017 order raised “serious questions concerning the competency of the defense.” That was the very defense Hayat’s team wanted, led by CAIR rising star Wazhma Mojaddidi. After she failed, the judge wasn’t done, and in January of 2018 Barnes ordered an evidentiary hearing on the Hayat case that proved revealing on several fronts.
CAIR’s Basim Elkarra again cited concerns that Hayat “did not receive a fair trial.” MLFA executive director Khalil Meek argued that “Hayat was essentially convicted for possessing a prayer written on paper that asked God for protection.” Dennis Riordan went on record that “this motion to vacate Hayat’s conviction is currently the best vehicle for exposing the harmful effects of anti-Muslim bias in American courtrooms.” As the facts showed, it was more about Muslim hatred of Americans.
Hamid Hamyat was convicted in 2006 for aiding terrorists and lying to the FBI. In 2013 the Ninth Circuit Court of Appeals upheld his conviction and in 2014 U.S. District Judge Garland Burrell denied Hayat’s motion for summary judgment to vacate his conviction. Following that ruling, former U.S. Attorney McGregor Scott, who headed Hayat’s 2006 prosecution, told reporters it was “a righteous prosecution and a just result.”
In 2007, federal authorities argued against a new trial for Hayat and as their legal brief noted, Hayat claimed that jihad was the duty of all Muslims, his motive for attending the terrorist training camp. In recorded interviews, Hayat gleefully stated he was “so pleased” that jihadis had cut Wall Street Journal reporter Daniel Pearl “into pieces.” Hayat said Pearl “was Jewish” and that as a result of this “good job,” now “they can’t send one Jewish person to Pakistan.”
In January 2018, Wazhma Mojaddidi denied that she was to blame for losing the case. Hayat’s attorneys wanted family members to testify by video from Pakistan. For prosecutors, that raised questions about how the witnesses would be sworn in, and the consequences if they lied.
Judge Barnes wondered if they could take an oath under Pakistani law, not valid in the United States and which Barnes did not swear to uphold. That brought more objections from prosecutors, but as Barnes explained, “the parties are free to argue the effect of the oath, and any penalties for false testimony, in their briefing after all the evidence is heard.”
Barnes scheduled two nights of testimony for the Pakistani witnesses, using an encrypted federal court videoconferencing system. All the witnesses testified that Hamid Hayat was a great guy and could not have attended a terrorist training camp. The hearing did not render a new trial or vacate Hayat’s conviction, but Deborah Barnes was not about to give up.
Her new 116-page recommendation now goes before judge Garland Burrell, who already denied the motion to vacate. Original prosecutor, McGregor Scott, once again the U.S. Attorney for the Eastern District of California, told reporters, “Mr. Hayat received effective representation at trial and that his conviction by a jury, subsequently affirmed by the 9th Circuit, is completely valid.” Even so, an appeal might settle some issues.
Judge Deborah Barnes’ performance review of Wazhma Mojaddidi, who denies she was incompetent, supposedly establishes the innocence of Hamid Hayat. This judge was willing to allow Islam-based Pakistani law to intrude in an American courtroom, and she authorized video testimony from Pakistan, with no consequences for falsification.
Some higher court needs to determine how all that conforms with U.S. law, the Constitution of the United States, and whether it serves the interests of justice. A performance review for Deborah Barnes might also be in order. Any observer could be forgiven for believing the judge should be removed from the case or relieved of her job.
Meanwhile, Hamid Hayat is due for release in May 2026.
AUGUST
11, 2017
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A California
judicial commission that’s operated in secrecy for more than five and a half
decades is engaged in a legal battle to thwart an audit ordered by state
legislators and Judicial Watch has filed a court brief supporting the long overdue probe in the name of
transparency. A court hearing has been rescheduled three times and shuffled
around to different judges, with the latest scheduled for August 17 before
Judge Suzanne Bolanos in San Francisco Superior Court. The case sheds
much-needed light on the unbelievable history of a taxpayer-funded agency
that’s conducted its business in private—and with no oversight—for 56 years,
even though protecting the public is among its key duties. The agency is known
as Commission on Judicial Performance (CJP) and it’s charged with enforcing
rigorous standards of judicial conduct and disciplining judges in the nation’s
largest court system.
California’s
court system serves over 37 million people and has more than double the judges
(1,882) of the federal judicial system, which has 840. The CJP should serve as
a tool to keep the system in check. Instead the commission has dismissed 90% of
complaints about judges in the last decade, according to figures published in a
California newspaper. Only 3.4% ended in disciplinary action and less than 1% led to
public censure. None of the decisions were transparent, the news story reveals,
and critics have demanded accountability for CJP for years, asserting that the
commission gives “biased and inept judges a pass.” In its 2016 annual
report, CJP discloses that
1,079 of the 1,210 complaints it received were dismissed after “initial
review.” Discipline was issued in only 45 cases with more than half of the
offenders receiving an “advisory letter.” Eleven others received “private
admonishment,” six got “public admonishment” and eight “public discipline.”
Only one judge was removed from office and another received public censure.
Offenses included on-bench abuse of authority, administrative malfeasance, bias
or appearance of bias and improper political activities.
Last year, a
California legislative
committee authorized State
Auditor Elaine Howle to conduct the first-ever examination into the CJP,
including whether the commission upholds due process when considering
allegations against judges and how investigators determine which complaints to
dismiss. Lawmakers finally acted after mounting pressure from a variety of
sources, including Court Reform LLC, a group that pushes for fair and
transparent courts that’s found CJP is “ineffective at enforcing judicial
discipline, wastes public money and is too secretive about its operations.” An
in-depth probeconducted
by the group compares the data and policies of judicial disciplinary
commissions in California and three other states and finds that the CJP is
“under-investigating and under-disciplining judicial misconduct and
misappropriating public funds.” It calls for the state auditor to investigate.
Howle is appointed by the governor and her office functions as an independent
external auditor that provides nonpartisan, accurate and timely assessments of
California government’s financial and operational activities.
To stop the
audit, the CJP sued Howle and her office asserting that a probe would violate
its constitutionally granted power to conduct confidential investigations. The
complaint also says that allowing a review of its operations would violate the
separation of powers doctrine that prohibits one branch of government from
intruding on the powers of another. In her response, Howle fires back that the CJP does not have special immunity
because it was created by the state constitution and that the California
legislature regularly directs the auditor to audit other agencies established
by the constitution, including the State Bar, Public Utilities Commission and
the University of California. Furthermore, Howle’s attorneys write, audits of
other state agencies, including the Attorney General’s Office and Judicial
Council, have not interfered with their core functions. “No court has ever
blocked the Legislature’s effort to obtain information about a state agency’s
performance via an audit,” Howle’s response to the court states. “There is no
reason—and no legal justification—to start now.”
In its lengthy
friend of the court brief (officially known by its Latin term, amicus curiae), Judicial Watch acknowledges that there
may be a valid reason to keep certain parts of CJP’s work confidential, but the
lack of information regarding its procedures and overall judicial discipline
undermines public confidence in the integrity and independence of the state
judiciary. “An audit issued by a competent, neutral auditor advances public
confidence in the integrity of the audited public agency,” Judicial Watch
writes in its brief. Judicial Watch also mentions its firsthand experience with
CJP’s judicial complaint process and addresses CJP assertions that an audit
would damage confidentiality. “In Judicial Watch’s experience, CJP’s
disciplinary process is opaque with virtually no information publicly available
about how the CJP handles complaints or when, if at all, it acts. Judicial
Watch has been unable to ascertain if any action was ever taken regarding its
complaints.” Regarding the confidentiality issue, Judicial Watch points out that
confidential information is regularly shared between governmental agencies
without the information losing its confidential status.
CJP was
established in 1960 as a state agency to investigate complaints of judicial
misconduct and incapacity as well as for disciplining judges. It has 11 members
that include one appellate court justice and two superior court judges
appointed by California’s Supreme Court. The others include two attorneys and
two lay citizens appointed by the governor and four additional lay citizens
appointed by the Senate Committee on Rules and Speaker of the Assembly. Members
are appointed to four-year terms. The CJP’s mandate is to protect the public, enforce rigorous standards of
judicial conduct and maintain public confidence in the integrity and
independence of the judicial system. It’ difficult to accomplish that in
absolute secrecy.
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