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Slate's Jurisprudence: Mistrial Options in Lodi Case

MADELEINE BRAND, host:

From NPR News, it's DAY TO DAY.

In Lodi, California, Umar Hayat walks away from federal custody this week after almost a year behind bars. Hayat was tried on terror charges for lying to the FBI about his son's involvement with al-Qaida. His case ended in a jury deadlock and mistrial. His son, Hamid Hayat, was found guilty last week of supporting terrorism by attending al al-Qaida training camp in Pakistan. That conviction, though, has been tainted by a claim from a juror that she was pressured to vote guilty.

Joining us to discuss the case is Dahlia Lithwick, she's a legal analyst for the online magazine Slate and for us here at DAY TO DAY. Hi, Dahlia.

Ms. DAHLIA LITHWICK (Legal Analyst, Slate Magazine): Hey, Madeleine.

BRAND: So this juror in Hamid Hayat's case came forward last week. She says now that she regrets her decision to cast a guilty vote. What did she say?

Ms. LITHWICK: Well, this is a 44-year-old school nurse. She filed an affidavit late last Thursday. She was approached by one of the defense attorneys who saw that she was visibly upset when the jury read the verdict, and so he approached her. She says he didn't pressure her, and she essentially filed this long affidavit saying she was bullied, she was mocked, the foreman was a complete racist. She alleges that he made this sort of hangman's gesture over and over and said let's hang the guy. She alleges that one of the jurors read a three-page typewritten statement in which she said that it was so stressful that this one juror was being a hold out, and it was affecting her health.

So, essentially, she says I never once believed for a minute he was really guilty, but all these sort of accumulated pressure of the jury deliberations of being the hold out and of having this sort of racist foreman pressuring me all the time just did me in, and so I changed my vote and I voted to convict and I'm sorry.

BRAND: Well, when this kind of thing happens--when a juror has these post-conviction regrets, is there any kind of standard procedure that the judge has to go through in order to investigate whether or not that's valid, whether or not there should be a new trial?

Ms. LITHWICK: Well, I mean, the standard procedure is what's happened, which is the defense have filed a motion to go back and look at it again. Obviously, it's being very, very opposed by the prosecution. I think the system just basically favors finality. It says, look you guys, of course it's a pressure cooker in there, but you know, get through it and come back with a verdict. And I think there's a real fear that if we were to give real credence to these ideas that, oh, you know I was uncomfortable, I changed my mind, I want to look at it again--it just really creates an escape hatch for jurors. They essentially say, well, you know, I can vote one way and then change my mind after. We'll reopen it.

The legal system doesn't favor that. The legal system says we want a final decision, so bring it to us and then absent really shocking misconduct, we're not going to look at it again.

BRAND: Well, as you say, jury rooms can be pressure cookers, and I suspect even more so with these kinds of high profile terror cases. So what kinds of challenges do juries have in terror trials such as these?

Ms. LITHWICK: This is a good example, Madeleine, of how hard it is for a jury when, essentially, the government has sort of moved the goal pasts on what it is to be a crime. What the actual charge here was sort of having a bad heart, and, in fact, that was in the summation offered by the prosecution; he had a Jihadi heart. And so I think, essentially, these jurors were being told not that the planned to do something, not that he did something, but this is just a bad guy who might have been activated later on, and I really do think that opens up all sorts of juror misconduct in terms of making assessments about is this just a mean guy, is this a guy who doesn't like Americans?

And then I think it does open the possibility of xenophobia, of racism, of all sorts of blanket judgments about what people are like, and that's very dangerous. It's something that jurors in terror trials are going to have to be very watchful for. Jurors are going to have to understand that they're making incredibly, incredibly blanket judgments about who's just kind of a bad guy.

BRAND: Opinion and analysis from Dahlia Lithwick. she covers the courts for the online magazine, Slate.

Thank you, Dahlia.

Ms. LITHWICK: My pleasure, Madeleine. Transcript provided by NPR, Copyright NPR.

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