(CN) – Four people accused of kidnapping a three-year-old boy and performing an exorcism on him until he died in the high desert of New Mexico asked a 10th Circuit panel to vacate their life sentences because, among other things, the abduction was not legally kidnapping.
“Just because someone uses the term in its loose definition doesn’t make it so,” defense attorney Katayoun Donnelly told the three-judge panel in a Denver courtroom Thursday morning. “The government wants to keep Hujrah Wahhaj in prison for the rest of her life for the consensual companionship of her brother, who legally and voluntarily took his son across state borders.”
Siraj Wahhaj, his brother-in-law Lucas Morton, and Siraj Wahhaj’s sisters, Hujrah and Subhanah Wahhaj, took Siraj Wahhaj’s son, Abdul-Ghani, from his wife in Atlanta, Georgia, and took him to a makeshift home. complex in Taos County, New Mexico, at the behest of Jany Leveille, who told the group Abdul-Ghani was her son and possessed by evil spirits. There, they held 11 other boys between the ages of one and 15, according to the Taos County Sheriff’s Office.
Some of the boys were kept in the compound TESTIFIES in a 2023 trial, where Siraj Wahhaj and others withheld his child’s anti-seizure medication and performed “daily exorcisms” on him until he foamed at the mouth and died. They dumped his body in an underground tunnel.
Siraj Wahhaj was not charged with kidnapping or murder. But a jury convicted that of providing material support to terrorists and conspiring to kill a United States officer in a plot to “wage Jihad” against the FBI and other law enforcement agencies that Siraj Wahhaj says was unrelated to his son’s death.
Representing Siraj Wahhaj, defense attorney Jacob Rasch-Chabot told jurors that evidence of Abdul-Ghani’s kidnapping and death presented at the joint trial prejudiced the jury against his client.
“With all that evidence, no reasonable juror could dispassionately weigh the evidence to determine whether Mr. Wahhaj was guilty of an entirely different crime,” Rasch-Chabot said.
The plot to kill the FBI agents came about after a prophecy given by Leveille after Abdul-Ghani’s death that he would be resurrected as Jesus Christ and punish the unbelievers.
Because the judge did not sever Siraj Wahhaj’s trial from the rest of the defendants, Rasch-Chabot said his conviction should be overturned.
Federal prosecutor Tiffany Walters said the United States would have presented the same evidence in an individual trial anyway.
Walters argued that the plot to kill the FBI agents was “inextricably intertwined” with Abdul-Ghani’s kidnapping because Siraj Wahhaj knew before his son died that the FBI was looking for him. The trial court ruled that severance would likely result in two identical trials.
Sisters Hujrah and Subhanah Vehhaj, both convicted for kidnapping resulting in death, said their convictions should be thrown out because a father cannot kidnap his son without a court order to remove custody. Even if Siraj Wahhaj’s wife had not consented, the sisters could not have helped spur legal action, Donelly argued for Hujrah Wahhaj.
U.S. District Judge Nancy Moritz, an appointee of Barack Obama, asked whether it would violate federal law for a parent to pay a third party to take their child against the other parent’s consent.
“Why not?” Donnelly asked. “We do this all the time with our nannies. We live in America. Every working mother has someone who will kidnap their child to take them to different places.”
In his rebuttal, Walters said the sisters’ legal theory could have been true if Siraj Wahhaj hadn’t locked up and tortured his son after transporting him across state lines.
“The Georgia courts issued an arrest warrant, which I think is good evidence that the Georgia courts thought what he did was illegal,” she said.
She agreed that unless the judges find that there was an illegal seizure, Hujrah Wahhaj’s sentence should be overturned.
Lucas Morton – who, like Siraj Mahhaj, represented himself at trial – was convicted of providing material support to a terrorist plot to kill a United States officer and kidnapping resulting in death.
During the trial, Morton and Siraj Mahhaj were not allowed to approach the bench in the presence of the jury, meaning their standby attorney had to represent them in jury conferences and report information to the defendants.
Representing Morton before the 10th Circuit, attorney Andrew Casey said Morton was irreparably prejudiced by being prevented from attending all 46 bench conferences during the three-week trial.
“This is many times to excuse the jury and implicate the defendant,” U.S. District Judge Carolyn McHugh, a Barack Obama appointee, told Casey.
Casey said the court could have used headphones and a white noise machine to talk to the defendants at their table out of earshot of jurors.
Walters said the defendants had the opportunity to object and did not. She said Morton never identified a verdict that might have been different if he had attended the bench trial.
The panel, chaired by US District Judge Gregory Phillips, appointed by Barack Obama, did not say when it will rule.
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