THE
UNFAIR TRIAL OF DR. AFIA SIDDIQUI
By:
HAMID KHAN
Advocate Supreme Court
Introduction
The
case of Dr. Afia Siddiqui is one of the shocking instances of colossal
miscarriage of justice at the hands of American Courts, particularly in the
aftermath of 9/11. The facts of the case that can be deciphered from the
judgments of the United States District Court, Southern District of New York
and United States Court of Appeal for the Second Circuit can be summarized as
under:--
(1) Afia Siddiqui was born in early 1970s
whose father was a physician and social worker. She spent a few years as young
child in Zambia. Later on she went for her studies in United States of America
(USA) along with other members of her family. She was a college student in
Houston and later in Boston where she received an undergraduate degree from
Massachusetts Institute of Technology (MIT). She received Ph.D from Brandeis
University, USA. Her brother got a degree in architecture from USA and her
sister is a Harvard-trained neurologist.
(2) She was married with three children. In
2003 she was intercepted supposedly by members of Pakistani Intelligence agency
while she was traveling in a taxi to Karachi Airport with her children. She was
initially tortured by Pakistani intelligence officials who had detained her.
Later on, she was handed over to Americans.
(3) From the years 2003 to 2008 she was
detained in the American detention facilities at the Bagram base in
Afghanistan.
(4) At the time of her disappearance in 2003
in Karachi she had three children. Her oldest child was a son, about 8 years
old. She had a daughter younger to her son. Her daughter appeared mysteriously
at her sister's home in Karachi around 2008/2009. Her youngest son Suleman was
six months old when she disappeared but nothing is known about him ever since.
(5) The children were kept away from her and
she was held in solitary confinement at the Bagram Base for about 5 years.
There have been press reports that other prisoners around her cell used to hear
cries of a woman. From all that is available on record, there is no mention of
her presence at any specific place from 2003 to 2008. She was produced purportedly
by the Afghan National Police and officials of Afghan Ministry of Interior in Ghazni
Province on or about 17 July 2008 alongwith her 13 years old son. She was at
the Afghan National Police compound in Ghazni when a number of U.S. officials
and employees including army special forces, FBI agents and their interpreters
came to interview (rather to investigate) her. It was at this juncture, while
her interrogation was in progress, she is accused to have picked up an M-4
rifle belonging to one of the American troops and fired it at American soldiers
/ investigators present there but missed them all. However, one of the American
soldiers shot her in the abdomen. She was taken to a hospital where she was
treated and cured.
(6) After having recovered from her injury, she
was transferred to USA where she was tried by United States District Court,
Southern District of New York by District Judge Richard M. Berman. She was
charged on seven counts before a Jury which found her guilty and was sentenced
to 86 years of prison on 23 September 2010.
THE PROSECUTION
CASE
The
prosecution case is based upon speculations. One speculation was that she was
looking for Ammar Al Baluchi to whom she was married and who was being held
along with his uncle Khalid Sheikh Muhammed, at the United States Base in
Guantanamo, Cuba, on terror-related charges. The other speculation was that she
was there to distribute documents instructing the Taliban on how to make
explosives to destroy the foreigners and government Army. However, the Court
did admit that it was never definitively accepted why Dr. Siddiqui and her son
were in Afghanistan at that time. Thus the Court proceeded on the speculations
stated above.
It
is also alleged that at the time of her arrest in Ghazni by the Afghan forces
she was in possession of two pounds of sodium cyanide which is a highly toxic
substance that could be weaponized and is poisonous even in small doses. She
also had in her possession documents in English and Urdu, some written or
copied by Dr. Siddiqui herself, which mentioned U.S. locations and/or landmarks
such as the Brooklyn Bridge, the Empire State Building etc. They also mention
techniques for combat against the USA and for biological warfare. The Afghan
alerted the US forces who were in the area which the Court chooses to
characterize as a war zone. That is why a team of
The
American team (no number is mentioned) assembled in a crowded room in the
Police compound. Dr. Siddiqui, however, was left unguarded and unrestrained
behind a curtain dividing the room despite that she had already tried twice to
escape from Afghan custody. Moreover the prosecution case was that, after U.S.
Chief Warrant Officer put down his weapon - in a gesture of cordiality and
respect for the Afghans, Dr. Siddiqui picked up his M-4 rifle (which is
described in the indictment as a machine gun) and aimed at the Americans and
pulled the trigger firing off several shots. As she did this, she uttered in
impeccable English anti-American sentiments, such as "I want to kill
Americans", "Death to America", "I want to kill all you
mother" and "May the blood of something be on your head or
hands". However, she missed the targets but the Chief Warrant Officer did
not, and shot her in the abdomen. An Afghan interpreter named Ahmed Gul charged
overpowered her who, even after being shot, put up a violent struggle with the
M4 still in her hands.
THE TRIAL
She
was then treated and nursed back to health. She was flown to New York in August
2008 and appeared in the Southern District of New York before the Magistrate
Judges Ellis and Pitman. Attorney Elizabeth Fink was appointed as her first defence
counsel who was later replaced at her own request by Dawn Cardi and Chad Edgar.
They were later joined by the defence attorneys Elaine Sharp, Linda Moreno and
Charles Swift who had been retained by the government of Pakistan, supposedly
in consultation with Siddiqui family and according to a treaty to which U.S. is
a party (Siddiqui family denies having agreed to any such appointment).
Dr.
Siddiqui was put on trial on 2nd September 2008 and was indicted on seven
separate counts or charges or crimes, each count being a separate crime or
offense. These charges included the following:
(i) Attempted murder of U.S. nationals,
(ii) Attempted murder of U.S. officers and
employees,
(iii) Armed assault of U.S. officers and
employees,
(iv) Discharge of fire arm during a crime of
violence,
(v, vi & vii)
Three counts of assault of three different U.S. officers and employees, interpreter
Gul, Capt. Snyder and special agent, Negron.
THE DEFENCE
VERSION
The
defence version offered on behalf of Dr. Siddiqui was that she was intercepted
while traveling in taxi in Pakistan on her way to airport with her children and
was taken into custody and thereafter tortured. This occurred in and around
2003. She was detained initially by Pakistanis and later the Americans. She and
her son had alleged that they were detained and mistreated by American soldiers
and people speaking Urdu and Pushto.
The
defence version was completely rejected by the judge on the pretext that there
was no evidence on the record to substantiate it. He emphasized that there was
no credible evidence in the record that the United States official and/or
agency detained Dr. Siddiqui prior to her arrest in July 2008 (the time of
alleged shooting incidence).
Although
the defence team had five members, only Ms. Cardi tried to defend Dr. Siddiqui.
Thus the defence team including those retained by the government of Pakistan on
heavy fees did nothing to defend her. However, even Ms. Cardi did not offer the
defence that the entire alleged incident according to the prosecution version
was neither believable nor plausible and was not proved beyond any reasonable
doubt. This all would have been the real defence in the case but surprisingly
it was not put forward by the defence attorneys. She did say that though the
government of USA did not admit the act of detaining her in secret prison or
committing torture on her but this appears to be obvious from the history of
the case. It cannot be forgotten that she is a woman who is a mother and whose
children were missing for years. Her little girl appeared at her sister's home
in Karachi after the conviction by the Jury in March 2010. Her son had given
different statements which indicate that as a child he had been traumatized and
went through terrible time. The whereabouts of her youngest son Suleman, who
was six months old when he disappeared, were unknown. One reason why she kept
quiet for five years (i.e. from 2003 to 2008) was her fear and concern about
what had happened to her children. As a mother, she would die rather than hurt
her children. On this basis Ms. Cardi argued that her story that she was kept
in secret prison and tortured was plausible.
The
second plea taken by Ms. Cardi was that though the Court had found Dr. Siddiqui
to be competent to stand trial she was in fact suffering from mental illness
and diminished capacity. This has been supported by not only the psychologist
hired for the defence, but also by her treating clinician in Carswell, Texas.
Dr. Camille Kemky testified that Dr. Siddiqui was suffering from schizophrenia
which included paranoid delusions and mental illness. She further argued that
Dr. Siddiqui's demeanor, what she talked about during the trial and her
outbursts have all been incoherent which established that she suffered from
diminished capacity. Dr. Kucharski had opined that her unwillingness to
cooperate with her counsel during the course of her defence was a clear
indication of her delusion and her paranoia and fear. Coming to her background,
it was argued by Ms. Cardi that she was not a violent person but has been an
abused spouse. Ms. Cardi had also referred to the interview of Dr. Rosenfeld
(who has been her teacher) that she had started of as a promising candidate but
her mental capacities diminished and her ability to work and do the work
diminished, that she did not really seek the kinds of professional jobs that
she should have been given her background. All this basis of evidence show that
she suffered from mental illness and had diminished capacity to stand the
trial.
Regarding
allegation that she had some expertise in chemical warfare because of her Ph.D
in neuroscience, Ms. Cardi argued, was misconceived. Her Ph.D. was in cognitive
science i.e. on how children learn. She was neither a biologist nor a chemist
and there was nothing about her studies that would indicate that she had any
special expertise on chemical warfare. The allegation of the prosecution that
she could produce viruses that could attack only adults and not children and
that she could make hang gliders flying into public buildings were all
misconceived. Anyone claiming to do so can neither be sane or competent nor
such thinking can produce an efficient form of a terrorist act. Such material
could only be regarded as her ramblings. Dr. Rosenfeld had also opined that her
writings were incoherent and were of a person who is mentally ill. Furthermore,
the prosecution could not establish that she was either a terrorist or privy to
an act of terrorism. By no means the prosecution established that she was a
Jehadist and that she was someone who was going to harm the
Ms.
Cardi further argued that it was implausible that Dr. Siddiqui would be showing
up in Ghazni Province. What was she doing there? Convert the Taliban? Bring
people into the Taliban? Bring people into the terrorist organizations? Had she
been doing all such things, the documents and writings on her should have been
in Dari and Pushto and not in English and Urdu languages, which the people
living in Afghanistan do not understand.
About
the allegation that Dr. Siddiqui tried to escape when she was apprehended in
Ghazni Province, Ms. Cardi stated that her desire to escape from the Afghans or
the Americans would not mean that she wanted death to America or any other harm
to America. There was no reason why she should not escape having been petrified
and frightened about being tortured, about being sent to Guantanamo and about
experiencing what she had gone through during the previous five years. With
such experiences it was only natural that she would want to escape which would
not mean that she was making plans to do damage or attempt to murder these
individuals who were in there on that day.
Ms.
Cardi explained the kind of place she was detained after having been brought to
USA. The prison cell in which she met Dr. Siddiqui was a small concrete cell
block with no light, no windows, a toilet and nothing on the walls. Anybody
would turn mad being in that cell for about 23 hours a day. She was only let
out for one hour of exercise. She was fed her food through the cell. It was a
horrible, horrifying condition. It would be horrifyingly cruel to keep her
detained in such conditions for the rest of her life or for long period of
time.
Ms.
Cardi, on the question of sentence, argued that Dr. Siddiqui had not exhibited
any violent behavior in any way over the years she had been incarcerated. In
fact, she was a kind of a peaceful soul in the prison system. There was no
violence even with her mental illness and diminished capacity and that she
needed to be rehabilitated. Ms. Cardi said that it could only be appropriate
for the judge not to sentence Afia Sidiqui to life imprisonment but to come up
with a sentence that is fair and just which allows Dr. Siddiqui the hope of
living her life outside of prison back with her family in her home. One the
most eloquent pleas made by Ms. Cardi with reference to the environment of fear
in and around Courts in USA which results into enhanced (may be cruel)
sentences. Ms. Cardi expressed this in the following words:
'I don't - you
know, we are going to look back at this era in our country and we may very well
say that fear was what drove some of our sentences. Fear. And I think in this
case a great deal of what the government says has been its desire to creat
fear; fear in our Courts, fear in our society. Fear. And because of that fear
they want Dr. Siddiqui to be sentenced to life in prison when really, under the
guidelines, her sentence should be approximately 12 years — 10 to 12 years
without these enhancements for the fear factor, the terrorists enhancement, the
now interpreting the attempted murder as first degree attempted murder with
premeditation so you can bump up the guidelines even higher. Fear.
STATEMENT OF DR.
SIDDIQUI.
Dr.
Siddiqui made a lengthy statement in her defence in which she tried to explain
the misery that she had been through. In brief she complained of the following:
(i) She was forcibly brought to USA.
(ii) She was kept in prison for the sick
persons.
(iii) She was tortured in prison. She was beaten
many times and lost most of her teeth. When she was brought from Bagram to
Ghazni she was given some artificial teeth which was a poor job because some
time they would fall while talking.
(iv) She was promised while being brought to
Ghazni that they will give back her children.
(v) She did not like war because she had
worked with war victims in Bosnia and had read about Burundi and Rwanda and the
massacres that had taken place over there. She did not like war and wanted to
see peace in the world. She did not know if her six months old son had
survived. She knew that he was sick and might not have survived.
CONVICTION AND
JUDGMENT
On
3rd February 2010, after two weeks trial she was convicted on all the seven
counts by the Jury. On 23rd September 2010, District Judge Richard M. Berman
sentenced her to a period of incarceration of 86 years; 76 years on charges
Nos. 1, 2, 3, 5, 6 and 7 grouped together plus 10 years on charge No.4. The 76
years sentence could be broken down into six counts. On charges Nos.1, 2 and 3:
20 years each, on charges No.5: 8 years, on charges Nos.6 & 7: 4 years
each. In addition, 10 years sentence was imposed on charge No.4. All these
sentences could have been made to run concurrent which would have meant that
Dr. Siddiqui would have served in detention for 20 years at the most. However,
the judge made all these sentences to run consecutively which added up to 86
years in prison. The reason for such sentence was the legal requirement of
enhancement she was liable for and which the judge explained below.
The
judge while determining her sentence gave the following findings:
(a) She was liable to enhancement of sentence
because of the presence of hate crime motivation or vulnerable victim. Both the
factors were based on her outpourings at the time of the incident. However the
vulnerable victims were no other than heavily armed American soldiers and
advisors present during the incidence. Hence, her shouts that she hated all
Americans and that she wanted to kill them, was held sufficient to establish
hate crime motivation and therefore it was deemed befitting case for
enhancement of sentence.
(b) The judge held her liable for terrorism
enhancement of sentence. If the offence is a felony that involved or intended
to promote a federal crime of terrorism the offence is liable to radical
enhancement. Since Dr. Siddiqui was involved in the offence of attempting to murder
U.S. nationals, officials and employees, therefore the judge held that such
offence was specifically enumerated in the terror enhancement guidelines. The
judge thus concluded that Dr. Siddiqui's offence was calculated to influence or
affect by intimidation the government's fulfillment of its official duties
including, among other things, the interview team's efforts to interview her
and to detain her. Hence the offence met both prongs of the terrorism
enhancement, which were to influence and affect by intimidation and
retaliation.
(c) The judge also held Dr. Siddiqui liable
for enhancement for obstructing or impeding justice. This occurred according to
the judge because he believed that she gave false testimony as to material
facts. False trial testimony, standing alone, was an appropriate basis for
imposing this sentence enhancement for obstruction of justice. He reasoned this
point in the following words:
'And if believed, the testimony would
tend to influence or affect the issue under determination. The jury found,
among other things, that Dr. Siddiqui intended to pick up the Chief Warrant
Officer's M4 rifle, that she did pick up the rifle, and that she discharged it
based on the testimony of very credible, in my view, witnesses.
Dr. Siddiqui testified to an entirely
different version of material facts. She said that she never intended to pick
up the rifle and that she did not ever pick up the rifle or that she discharged
- she said she did not discharge the rifle. And I am finding that those
statements were not true.
She further testified that she could
not have discharged the weapon because she did not know how to operate a
firearm and had never had weapons training. These facts too, if believed, would
have tended to exculpate her because they were material to establishing the
elements of attempted murder.
So, for those reasons I think that the
testimony related to material facts and was given to confuse the jury or
prevent the jury from finding her guilty.'
(d) The judge also held that her statements
were willful and intended consciously to mislead the jury and obstruct justice.
This he reasoned in the following words:
'Dr.
Siddiqui was asked if she ever picked up an M4 rifle and aimed it at anybody
and she responded: Of course not.
And when asked if she ever fired a
rifle she said: No, no. In fact, let me tell you, an M4 rifle, I heard about it
but the first time in my conscious recollection I can tell you what it looks
like is when I saw it here in Court. All of this time I have been wondering
what does an M4 look like. I recall asking somebody if that is a pistol or a
bigger rifle.
Another instance, when asked about
herself being shot she answered: I could feel blood and at that point I just
fainted on a bed. I couldn't move. I was thinking - I remember I was able to
think but unable to move my hands and feet.
And also when asked: Isn't it true in
the early 1990s when you were a student at MIT you took a pistol course at the
Braintree Rifle and Pistol Club just outside of Boston, is that true? She
replied: I have no recollection of that. Absolutely not.
And when asked: M ' am, you have some
familiarity with firearms, don't you? She said: No, I don't. I look at a gun
and I know it is a gun but I couldn't tell the different brands of them, how to
use them, operate them, those kinds of things, no.
But you recall that Gary Woodworth
testified credibly that he in fact had instructed Dr. Siddiqui at the Braintree
Rifle and Pistol Club on how to, among other things, handle a firearm, load and
unload the safety of a firearm, and fire a pistol.'
All the above reason was meant to hold
her to have willfully given false testimony.
(e) The judge took pain in holding her offence
as premeditated. The factors that he thought were in favour of finding of
premeditation were preponderance of evidence that she wanted to kill Americans
and wanted to escape. The other factor was testimony of the witnesses who held that
her intentions were; to shoot at us, to shoot at me. Secondly the testimony
established that she was determined not to be taken into Americans custody or
be taken to United States. He held that the case law was clear that threats
made before a killing or attempted killing are relevant to a finding of
premeditation.
THE APPEAL
Dr.
Siddiqui was not interested in filing an appeal because she felt that it would
not be fruitful. When the trial judge informed her of her right of appeal she
said that she would never get justice at the hands of American judges. She said
so in the following words:
`The way this
trial was handled the appeal I assume would be the same way and that this kind
of circumstances where I cannot get a lawyer of my choice, I am dumped by other
people who are not authorized etc., etc., etc., etc., too long list of
injustices, I do not want anybody to donate one penny towards appeal. It is
useless, pointless, waste of time, energy, money, everything. Okay? I appeal to
God. And he hears me.'
When
Ms. Cardi offered to file a notice of appeal before the Court, Dr. Siddiqui
announced that she strongly refused to have her as counsel or any other person
appointed by anyone or even self-appointed. Despite her strong protestations,
an appeal was filed on her behalf. The appeal was heard by Court of Appeal of
the Second Circuit by Richard C. Wesley, Susan L. Carney (Circuit judges) and
Roslynn R. Mauskopf, District Judge. Ms. Cardi appeared for Dr. Siddiqui before
the US Court. The appellate Court believed the prosecution story and all the
witnesses produced by the prosecution. The appellate Court even condoned
hearsay evidence and improper admission of documents. The appellate Court also
ignored juror's disagreement as to defendant's act. The appellate Court also
rejected the argument that the District Court was required to instruct the jury
that they had to be unanimous as to which US employee or national that Dr.
Siddiqui intended to kill. The Court concluded that identity of the victim in
such cases was not necessary. The appellate Court also rejected the pleas that
the District Court had erred procedurally by not providing notice to defence
counsel on the point that recidivism was going to be a predominant concern and
that the District Court had imposed a "substantively unreasonable"
sentence by finding that without treatment Siddiqui was likely to be
recidivist. He reached a conclusion that could only be done by a mental health
professional. Thus the appellate Court held that the District Court correctly
relied on factors like seriousness of the offence and the need for general
deterrence in fashioning the sentence. Under the circumstances of the case, the
appellate Court held that the sentence of 86 years' imprisonment was
substantively reasonable. Finally, the appellate Court rejected the claim that
the District Court had erred in finding that her conduct was premeditated and
held that even without a finding of premeditation, Dr. Siddiqui was liable to
life imprisonment. Hence the appellate Court appeared to be even more emphatic
than the trial Court in its affirmation of the judgment of the trial judge.
GROSS INJUSTICE
The
prosecution story, verdict of the jury, the judgment of the trial District
Court and the summary order of the appellate Court are simply shocking to the
principles of justice, fairness and good conscious and has exposed the
shortcomings of the American criminal justice system particularly in the matter
of trial of foreigners accused of terrorism. The bias of the judges is apparent
on the face of the two judgments. The case reveals a prejudiced criminal
justice system that has been undermined and tempered by the environment of fear
created in the American mind after 9/11. Such factors coming out of this case
are discussed below:
(1) In the first instance, the prosecution
story is neither believable nor plausible. There is no explanation about the
very presence of Dr. Afia Siddiqui at the place and time when she was allegedly
arrested. There is no proof of the time she had actually spent in Afghanistan.
She was admittedly a Pakistani citizen and it was the duty of the prosecution
to prove how, when and under what circumstances she was brought from Pakistan
to Afghanistan. Without proving the background to her presence in Ghazni in
2008, the entire edifice of the prosecution version would crumble to pieces.
The prosecution story stands on foundation of sand because the background to
the alleged offence was never proved by the prosecution.
The
prosecution story on the face of it is absurd to state the least. Dr. Siddiqui
who is known to be a frail woman was allegedly present in a room with heavily
armed men (mostly American troops). She would only be overwhelmed by fear and
awe of the circumstances she found herself in. It is highly implausible that an
American soldier would put his gun down unguarded for anyone to pick up in that
room where she was to be supposedly interviewed. The M4 rifle is known to be a
heavy gun not easy to operate by a frail woman and particularly when there is
no proof during the trial that she had been trained to handle such a highly
sophisticated weapon. How could she pick it up and fire at the American troops
present in the room.
It
is indeed ironic that if it is believed that she had the capability of handling
a highly sophisticated weapon like M4 rifle then how could she miss all the
persons admittedly present in that room. It is also strange that one of the
persons being fired at could easily shoot her in the abdomen and another person
could physically overpower her and snatch her rifle.
(2) In the second place, there are serious
jurisdictional issues. She is citizen of Pakistan purportedly found in another
country from where she is forcibly taken to USA against her will. There is
absolutely no indication of any due process being used for removing her to USA
to stand trial in a jurisdiction of US choice. There is no indication that her
extradition from Pakistan (or even Afghanistan) was ever sought by US
government for holding her trial there. It is no less than legal gangsterism to
kidnap citizens of another state and force them into submitting to the legal
processes of a foreign state. It is a settled law that the person brought
before a Court for trial should have been so brought through valid legal
process.
(3) Thirdly, the jury trial in the US Courts
in respect of foreigners accused of terrorism in the aftermath of 9/11 have
been known to be unfair and unjust. The purpose of jury trial is guarantee of
justice and fairness to the accused who is tried before his peers who understand
the circumstances giving rise to the alleged crime. For that purpose, such jurors
have to be present who belonged to the locality where crime was allegedly committed.
This rationale of jury trial is completely absent when foreigners are tried before
an American jury for having committed a crime in a foreign land that jurors are
unfamiliar with. Such juries have to heavily rely on the prosecutors who can
easily mislead them by creating an environment of fear and insecurity in their
minds. It is no secret what kind of trials are held in US Courts of those who
are brought from Pakistan or other Muslim country on the charge of terrorism.
The prosecution lawyers open their cases showing footage of terrorists to the
juries in order to instill fear in their hearts and minds. Such jurors are
likely to forget that though there may be terrible terrorists and their
organizations out there but that would not mean that the accused before them is
one of them unless it so proved by the prosecutors beyond any reasonable doubt.
The jury becomes a tool in the hands of the prosecutors and the jurors in such
cases believe in prosecution story as if it is a gospel truth. The actual facts
and circumstances are substituted by fear, speculation and conjunctures and
they tend to believe in every such speculative or conjunctural charges framed
against the innocents. This is what appears to have happened in the case of Dr.
Siddiqui who is a victim of unfair jury verdict.
(4) Fourthly, judge Berman seems to be the
real prosecutor in the case. He believes everything stated by the prosecution
witnesses and disbelieves everything said by the defence or the accused
herself. Every accused is entitled to defend himself on the basis of his
defence plea. Accused can only be punished if the prosecution successfully
proves the case beyond any reasonable doubt. A person cannot be convicted
because defence has failed to prove his/her defence story. In this case it is
shocking to the fundamental concept of due process, norms of fair trial and
justice that what is stated by the accused in her defence is not only
disbelieved but is held as perjury justifying enhancement of sentence. Her plea
that she could not operate M4 rifle is totally disbelieved and the testimony of
a prosecution witness who only said that she had training in use of pistols is
believed to the extent that training for use of pistols / hand guns would be
deemed sufficient in assuming that she was trained to use a highly
sophisticated weapon like M4 rifle. It was not even the case of the prosecution
that she ever had any training to use and operate M4 rifle. Not only she was
disbelieved in this behalf but convicted for perjury justifying enhancement of
sentence.
(5) Fifthly, Judge Berman has also done grave
injustice to Dr. Siddiqui when after admitting that there was evidence to the
effect that she suffered from mental illness and schizophrenia, he proceeded to
hold her competent to stand trial like any normal person. He ignored the
opinion of the Psychiatrist and other specialists and deemed himself competent
and qualified to disregard their specialist opinion and hold her fit to stand
the trial. Thus it had been established from the evidence and opinions of the
specialists that she had reduced capacity to stand trial. Furthermore, it was
obvious from the statement of Dr. Siddiqui and her acts and utterances in the Court
that she was a highly disturbed and disoriented individual who had been
terrified and tortured out of her mind by the circumstances of her life during
the previous years. Such a person should be left alone to be treated at a
mental / psychological clinic and not to suffer long and cruel sentence.
(6) Sixthly, the defence team was of no help
to Dr. Siddiqui except Ms. Cardi who did try to defend her in her own limited
way. All others in the defence team had joined the prosecution in conspiracy of
silence. At places the defence appears to be complicit with the prosecution
particularly when they endorsed the charge that Dr. Siddiqui was desperate to
avoid being transferred into American custody. Hence the entire exercise was a
mistrial for the reason that Dr. Siddiqui did not have a counsel of her own
choice. In the American jurisprudence, it is a fundamental right to have a
counsel of his/her choice without which the trial is liable to be set aside.
For this reason alone the trial was gross miscarriage of justice.
(7) Seventhly, there was no viable
justification for enhancement of sentence or making the sentences run
consecutively. The finding of premeditation is absurd because the prosecution
itself had accused her of a spontaneous act. She was admittedly carrying no gun
by herself. The gun she is accused of picking up and discharging belonged to
someone else in the room. How could it be held that she knew that someone would
place unguarded gun for her to pick up. Similarly how could it be believed that
she threatened the Americans in a room full of heavily armed American soldiers
and employees. No rational or reasonable person could believe such a thing. On
the other hand the statement of Dr. Siddiqui that she was opposed of any kind
of war and sincerely believed in peace was completely ignored and disbelieved.
It seems that judge Berman was under oath to believe everything stated by the
prosecution how so ridiculous and absurd it might be and disbelieve everything
said by that defence or the accused how was ever reasonable and plausible it
was.
At
the end it may be mentioned how absurd and preposterous a judge could get.
Judge Berman held that after she was released from incarceration having served
her full sentence of 86 years in prison, she would still be placed on
supervised release for a period of five years. That would mean that having
served 86 years in prison and being 124 years of age (being 38 years old at the
time of trial), she would still be dangerous and needed five years of
supervision. How could anyone in his right mind pass such a sentence. It is
interesting to note that at this stage, the judge shows magnanimity while
considering supervised release which could either be five years or three years.
He could have made these consecutive as well. However, in his generosity he
chose to make them concurrent which meant one five year term only. What a cruel
joke? Such a thing can only come from a demented individual and not a
conscientious judge. The two judgments are reflective of a callous, cruel,
heartless and inhumane criminal justice system of which trial Court and
appellate Court judges are product of.