How A US Court Wronged Kashmir’s Tanveer Hussain?

When Kashmir’s ace snowshoe racer Tanveer Hussain was invited to participate in a US competition, the Trump administration’s racial remarks and policy came in between. As the news walked to front pages, the residents of Saranac Lake raised donations to fund Hussain’s trip. Once the race was over, he faced an allegation of abusing a minor. He was arrested and given a chance to plead guilty and pay the fine and fly home. He decided against it and faced the law. A year after his arrest and conviction, a resident Richard Shapiro, who helped get him bail and took care of his welfare, wrote a detailed essay about the crisis. It appeared in Adirondack Daily Enterprise, a local county paper that extensively covered the case. Kashmir Life reproduces the long piece that appeared in two parts.

Tanveer Hussain being taken to the court in US country Lake saranac

Tanveer Hussain’s case is officially closed, but in the interest of justice, I must present some facts that have not been publicized, including what I believe to be improper acts by public officials, and rebut the press release from Essex County District Attorney Kristy Sprague.

Tanveer, a non-English-speaking native of Kashmir, India, was arrested March 1 and charged with endangering the welfare of a minor and sexual abuse. The arrest was based on the accusation of a 12-year-old girl, the somewhat contradictory statement of her friend, a 12-year-old boy, and of Facebook messages allegedly between Tanveer and the girl.

The girl’s Facebook profile had her registered as a 34-year-old woman, born Sept. 9, 1982, and “interested in men.” She wrote Tanveer in Facebook messages that she and her mother were originally from Kashmir, that “My moms and step father are doctors,” that her mother was currently visiting India — “My mom but she’s in India right now with some of my family” — and that she herself had traveled to India: “It’s fine we can learn together like I can learn Hindi since I haven’t been to Kashmir since I was 7.” None of this is true. We do not know this girl, but these and other false statements should have made the DA question the truthfulness of her other statements.

This girl, and her family, need whatever help and support our community can provide. Tanveer also is deserving of fairness and support.

Lindy Ellis, left, and Saranac Lake village Trustee Richard Shapiro leave the St. Armand Town Hall with Tanveer Hussain after the snowshoer was released to them following a bail revision hearing. (Enterprise photo — Antonio Olivero)

We, and a fluent interpreter, have reviewed the recordings of Tanveer’s approximately four-hour police interrogation, where Tanveer’s coach was interpreter. The Miranda rights translation was extremely poor and incomplete, with large portions skipped by the interpreter or merely repeated in English. During this interrogation, the police repeatedly told him that kissing the girl was “no big deal” and that they had a video recording of the kissing. None of this was true. For four hours they badgered him with these untruths trying to get him to admit he had committed these acts, but Tanveer steadfastly maintained that he did not kiss her.

That night, Tanveer was offered a deal: Plead guilty to a misdemeanor, pay a $250 fine, and go home the next day as scheduled. He declined, maintaining and wanting to prove his innocence. Then this ongoing nightmare really began.

Tanveer was arraigned in St. Armand town court and remanded to Essex County Jail in lieu of $5,000 bail. After consulting with Tanveer’s court-appointed attorney, my wife and I bailed him out on Friday, March 3. Tanveer’s release was delayed for over one-and-a-half hours, during which time the Essex County DA was informed that Tanveer was being bailed out. When Tanveer got in our car, he thought it was over and that he could go home the next day. He couldn’t understand us, so we called an interpreter who explained that it was not over. When we arrived at our house in Saranac Lake, there were two police cars and officers waiting to re-arrest Tanveer. He was shackled and taken to the police station, and then to town court in Bloomingdale. Sprague wanted his passport. She could have just asked for it, or asked us to bring him to the court. But no, intimidation and the instilling of fear was the DA’s method, it seemed to me. Tanveer’s bail conditions restricted him to Essex and Franklin counties.

Brian Barrett, defense attorney for Tanveer Hussain, comforts him after Tanveer Hussain was released to Richard Shapiro (rear right) and Lindy Ellis (rear left) at the St. Armand Town Hall Friday evening. Hussain was charged with first-degree sexual abuse of a 12-year-old girl earlier. (Enterprise photo — Antonio Olivero)

Tanveer’s preliminary hearing, commonly known as the probable cause hearing, was scheduled for March 6, postponed to March 7, to have the DA adjourn this evidentiary hearing. Tanveer was again offered the deal to plead guilty to the misdemeanor charge, pay a $250 fine and go home. Tanveer again refused, stating he wished to prove his innocence. His attorney requested that the bail conditions be amended to allow him to visit New York City where there are other Kashmiris, two of whom were present in the courtroom, but the DA objected, stating he was a flight risk. Repeatedly over several months, the DA used the fact that Tanveer had a plane reservation to India for the day after we bailed him out as an indication of flight risk. Each time the DA’s office spouted this misleading statement, we pointed out that this was his original return ticket, purchased before he left India, a requirement for entry into the U.S. If he was going to leave, he could have just paid $250 and be gone legally, with his passport.

At this hearing, Tanveer’s attorney asked that the case be moved to county court. A later motion to amend the bail conditions submitted to the county court was refused since, by law, the county court does not have jurisdiction until indictment. The town court no longer had the files, so they both claimed lack of jurisdiction. Would the town and county courts deny having jurisdiction if Tanveer had violated bail conditions?

When we arrived back at our house from St. Armand town court, there were two law officers waiting in our driveway to “talk” with my wife and me. They interrogated us as to where we had obtained information about Tanveer’s Facebook messages (from Tanveer’s Facebook) and other information. In a forceful way, we were told not to look into this any further and that we should not attempt to learn any more information about what had occurred. The lead officer told me, “Kristy Sprague has her eye on you” and that “being a village trustee will not protect you.” We were told to not mention this conversation to anyone. A few hours after they left, I related the conversation to a trusted member of the press, in confidence. Just in case something did happen, I wanted a contemporaneous record of this intimidation by those who are supposed to protect and serve.

New York law states, “The defendant has a right to a prompt hearing upon the issue of whether there is sufficient evidence to warrant the court in holding him for the action of a grand jury.” Unfortunately, “prompt” is not defined. Tanveer was not given this legally required opportunity to such a hearing where the defense could cross-examine and refute questionable testimony and evidence, if any. If we hadn’t bailed him out, with his court-appointed lawyer’s blessing, he would have had this hearing within six days of arrest, based on another New York state law.

Quotes in the newspapers mention the extensive investigation by local police, with the aid of state police, into the case of Tanveer Hussain. The Essex County district attorney’s office claimed their delay in moving ahead was waiting for additional evidence. Per the DA’s legally required disclosure, the fruits of this investigation were the statements made at the time of arrest and Facebook messages, all of which were available back in March.

A former chief judge of New York said district attorneys now have so much influence on grand juries that, “by and large,” they could get them to “indict a ham sandwich.” Five months after his arrest, Tanveer was indicted. The defense was not present at the grand jury and had no opportunity to refute anything presented. Coincidentally, the grand jury presentation was two weeks after the DA learned she would be unopposed for re-election and just before Tanveer’s visa expired. In all this time, no one from law enforcement ever checked to see if Tanveer was still here. The DA’s claim of flight risk was so bogus, even they did not believe it.

We filed for a visa extension, explaining the circumstances, but it was denied. We hired an immigration attorney to appeal the denial, and it, too, was denied. We filed a response to the denial within the requisite 33 days. Tanveer was still here legally, from the filings, but living under threat of deportation without getting his case resolved.

A conference between Tanveer’s new attorney, the assistant DA and the judge was scheduled for the day before Thanksgiving. The judge excused Tanveer from attending as we were traveling and could not transport him to Elizabethtown. The DA, not knowing this, alerted Immigration and Customs Enforcement that an Indian national with an expired visa would be at the courthouse. ICE showed up, but Tanveer fortunately was not there.

After nine months of being stuck in a country where he could now just barely speak the language (thanks to eight months of English lessons) and no end in sight, with a sick mother at home refusing surgery until his return, Tanveer was finally worn down enough to accept a plea deal similar to the one offered nine months prior. Sprague’s war of attrition had worked. Tanveer agreed to plead guilty to a misdemeanor, endangering the welfare of a child. Sprague asked for no jail time other than the two days he had spent in county jail nine months prior, and no fine. Tanveer pleaded guilty but never admitted that he had done it.

What we know, and never got to prove in court, is that Tanveer did not write the Facebook messages that were deemed “inappropriate.” He did not speak English. Mostly, Tanveer would text the girl’s message to his friend in India, who would text back a response that Tanveer would cut and paste into the original message stream. Was Tanveer naive in posting messages that he did not understand? Yes. Did he knowingly post something that could be potentially harmful? No. The law states that to be guilty the person must “knowingly act,” which he did not.

The fluent interpreter has called this friend in Kashmir, who admitted writing these messages and gave proof of this.

The court appearance for the plea deal was set for Wednesday, Dec. 6. We arranged for Tanveer to travel to New York City on Thursday, stay with a Kashmiri family, then depart from JFK airport to India that Sunday, Dec. 10. Tanveer was arrested by ICE (DA notification?) immediately after the proceedings that should have ended his nightmare. He was taken to Clinton County Jail to be held until transfer to the Buffalo Federal Detention Facility (ICE). Sprague’s inflammatory press release, issued shortly after the proceedings, provoked Clinton County Jail inmates to attempt to attack Tanveer, who then had to be rescued by guards, per a letter written by Tanveer. On Friday, Dec. 8, Tanveer was transferred to the federal facility to appear before an immigration judge within three months, and then be deported.

Tanveer was prepared to leave the U.S. on Dec. 10, with his ticket paid by private citizens. But now, at taxpayer expense, he has been moved from jail to jail, fed and housed, and when Immigration finally decides it is done, it will fly him home at taxpayer expense. As of this writing, his immigration attorney has not even been able to get the case on the court docket. That timing is up to Immigration and may take three months.

The U.S. immigration system is so determined to get Tanveer out of the country that it won’t let him leave!

Locked up for months without getting to appear before a judge? Where is our due process? This is illogical and surreal. And truly sad.

We have a DA who did not have enough evidence to go to trial, used time to wear down the innocent defendant and then used the immigration system to lock him up. Our justice system is running amok!

However, our citizenry has done us proud. Over these past nine months, the Tanveer Support Group went snowshoeing with him, professionally tutored him in English (approximately 50 lessons, one-and-a-half hours each), took him running, biking, paddling, hiking, etc. He played soccer Friday nights with a group of parents and kids. Over 40 generous folks of Saranac Lake donated funds for Tanveer’s legal defense, immigration appeals, food, clothing, shelter, plane ticket, etc.

The image of America to Tanveer and to his fellow Kashmiris is one of contrast. The governmental legal bureaucracy is slow, unjust and prejudiced. The people of America are kind, generous and caring. Fortunately, it will be the memories and actions of the common people that will define this episode for Tanveer and all his friends back in India.

from Kashmir Life http://ift.tt/2rJoFAf
via IFTTThttp://kashmirlife.net