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Hayat Dissent: Anticipatory Prosecution, Court's Rulings Unjust

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By William Peacock, Esq. on March 20, 2013 5:05 PM

Last week, the Ninth Circuit upheld the conviction of Hamid Hayat, a man with a seventh-grade education who confessed to attending a terrorist training camp after intense interrogation. His statements were corroborated by the testimony of a paid informant, with credibility issues, and the testimony of an expert who stated that the prayer in Hayat’s wallet would only be carried by a “jihadist.”

He was convicted of providing material support to terrorists, or as the government put it, having a “jihadi heart” and a “jihadi mind.” The majority upheld the conviction, while a passionate Judge Tashima issued a twenty-five page dissent.

"[T]he government has concluded that it is not for it to say what offense Hamid Hayat has committed, but it is satisfied that he committed some offense, for which he should be punished."

Anticipatory prosecution is now one of the government's anti-terrorism strategies. In these cases, individuals are prosecuted based on fear of future acts -- not on past behavior. Often, fear is substantiated by a plan, realistic or not. Hayat had no plan - only the unsubstantiated mutterings of an uneducated man who professed agreement with the despicable acts of the Taliban.

"I never intended on going to a camp."

We previously bemoaned the majority's emphasis grammatical semantics, and while that statement doesn't exhaustively assert "I did not and do not, in the past, present, or future, plan to attend a camp" is it fair to require that level of grammatical perfection of a man with limited education who was raised, in large part, in Pakistan?

Tashima's dissent argues the statement should have been admissible as a state-of-mind exception to the hearsay rule, especially in the context of Hayat's ongoing dialogue with the informant. The informant badgered him repeatedly about not going to a camp. He responded with the above statement.

In that context, the grammatical semantics seem even more meaningless.

Truth be told, Hayat seems like an uneducated blowhard. He tried to impress his new friend, who continued to encourage him to make increasingly extreme statements. When it came time for trial, the court allowed inculpatory statements while keeping out the statement that could have cast doubt on his "jihadist" intent.

"[S]omeone who is in jihad makes this supplication, someone who is at war with a perceived enemy ... "

The Rules of Evidence prohibit an expert from making an inference about whether the defendant possesses the requisite mental state. So why was the expert's testimony allowed here?

In Younger, an expert testified that someone possessing massive amounts of drugs usually does so for purposes of dealing. That was proper because the jury was free to conclude that the defendant was atypical.

While experts are free to testify to general practices or motus operandi, they cannot make categorical, definitive statements. According to the dissent, this testimony seems to have gone a step too far.

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