The only time Headley could have spoken to the Judge directly about his mental issues would be during his change of plea hearing, which occurred in March, 2010.

At every federal change of plea hearing, the Judge asks the defendant some version of a question about whether he's ever been treated for mental illness or undergone psychiatric treatment. This is to ensure that a plea is knowing, voluntary and intelligently made. (And in my view, to reduce the chances a defendant will later try to withdraw his plea saying he had some mental issue that precluded him from knowingly and intelligently entering his plea.)

From the news articles on Headley's testimony today, it appears Headley answered "No" when asked that question by the Judge. And the Government didn't contradict him.

How could the Government not have known about his mental health issues when he pleaded guilty? I've noted repeatedly since 2009 that when Headley was a cooperating witness in 1998 against a defendant named Ikram Haq in a federal heroin trial in the Brooklyn, the prosecutor in that case filed a motion in Headley's own 1997 pending heroin case to release a portion of Headley's presentence report to Haq's lawyers because it could be considered Giglio (impeaching material.) The Judge granted the motion, Headley testified against Haq and the jury didn't believe him. Haq was acquitted. From the docket:

ORDER, granting the government's request for permission to turn over to Mr. Haq's counsel the substance of 2 paragraphs from defendant Gilani's presentence report. (Signed by Judge Amon, dated 7/20/98). C/M by Chambers. See letter dated 7/17/98 from AUSA Eric Tirschwell to Judge Amon. (Reddy, Lisa) Modified on 10/14/1998 (Entered:7/29/1998)

And from Ikram Haq's docket:

07/28/1998 51 LETTER dated 7/28/98 from AUSA Eric A. Tirschwell to Sam A. Schmidt, Esq. that I am attaching two excerpts from Mr. Gilani's presentence report which Judge Amon today authorized to be released pursuant to Giglio v. United States. (Guzzi, Roseann) (Entered: 07/29/1998.)

Haq's trial began on 7/29/98. Headley testified that day, was cross-examined the next day, and the Government rested. The defense presented four witnesses, including Haq. Haq claimed entrapment and asked to present expert testimony on his own mental defect that made him more suggestible to enticements, but the Court refused. It still took the jury less than one day to find him not guilty.

Would prosecutors in the Mumbai case really not have checked out the Haq case before making a deal with Headley? That strains credulity. They aren't that sloppy.

In Tahawwur Rana's case, on Nov. 22, 2010, Rana's attorneys filed a motion (docket no. 148) for the Judge to review Headley's presentence report in his heroin case, saying:

4. Based on information obtained via interviews with potential witnesses, media reports regarding David Headley, and court records, counsel suspect that Headley’s prior presentence investigation reports contain, at a minimum, impeachment material. For instance, in United States v. Haq, a case from the Eastern District of New York in which Headley was previously a witness, excerpts from one of Headley’s presentence reports were tendered to the defense pursuant to Giglio. (United States v. Haq, EDNY, 97 CR 762, Docket No. 51)

When it is suspected that a witness’ presentence investigation report may contain impeachment material, the proper procedure is to request that the trial court examine the report in camera. United States v. Anderson, 724 F.2d 596, 598 (7th Cir. 1984). If the report does contain impeachment material, the judge should reveal the relevant portions to the defense.

On December 13, 2010, the Court granted the motion. In a minute order (Docket No.158 ), the judge wrote:

The Court has conducted an in camera review of the Presentence Investigation Report from co-defendant David Headley’s federal case United States v. Gilani, 97-CR-214-1 (E.D.N.Y. July 22, 1997) [148]. The Court orders that the Government disclose the “Mental and Emotional Health” section of this report to Defendant.

....The Court finds that the Government has an obligation pursuant to Brady to disclose the “Mental and Emotional Health” section of Headley’s July 22, 1997, presentence report. Presentence Investigation Report at 9, Gilani, 97-CR-214-1 (E.D.N.Y. July 22, 1997). This section shall be disclosed in its entirety."

The Court also ordered the Government to track down for in camera review the presentence report in Headley's first heroin case, United States v. Gilani, 88-CR-286 (E.D. Pa.). "The Government has indicated it will tender this if and when it locates it."

Headley had already pleaded guilty to the Mumbai attacks by the time Rana raised the issue. So the Court probably didn't know about these issues at the time Headley pleaded guilty. Meaning Headley did lie to the Judge when he pleaded guilty.

But I don't buy that he lied to the Government. Surely it reviewed his prior court records before extending its plea offer in the Mumbai case.

Did the Government have an obligation to inform the Court at Headley's change of plea hearing in the Mumbai case that Headley was not being truthful when he answered "No" to the question "Have you ever been treated for mental health issues (or received psychiatric treatment)?" or however the Court phrased it?

And once the Court found out months later from its review of the 1997 presentence report, should it have conducted a hearing to ensure Headley no longer suffered from mental health issues and his plea was valid?

The jury may not understand the importance of Headley's lies to his wife or the intricacies of Headley's playing double agent, but I think it will understand that Headley lied about his medical records and is mentally unstable. That alone could cause the jury to believe Headley is not a credible witness. Headley is the linchpin of the Government's case against Rana. This jury may decide, as did Haq's jury in 1998, that Headley is not credible, resulting in Rana's acquittal.

I think the Government should have brought this out on its direct examination of Headley. They knew Rana's lawyers had the information and would use it. Now it looks like Headley was hiding something. They could have brought it up and had him explain it, lessening its impact.

Question: Did the Government just torpedo its own case? If Headley provides the only evidence against Rana, I'd say the answer is "yes." But the Government put him on first for a reason, and has several more witnesses to go. If their remaining witnesses are strong, and have evidence against Rana independent of Headley's testimony, perhaps not.

The Government knows Headley's weaknesses as a witness. If they thought he was strong enough to bring the case home for them on his own, I think they would have called him last. By calling him first, if their other witnesses match his testimony in important areas, they are probably hoping the jury won't dwell on his pecadilloes like lying about his past mental health treatment or lying to his ex-wife, or double-crossing the DEA.

And the final question: What was the DEA thinking when it sent Headley, an informant with two heroin convictions and mental health issues, whose testimony a jury had rejected as non-credible, to Pakistan in December, 2001? Who was the agent in charge of watching him? Was it Derek Maltz, who used him as an informant following his 1988 heroin bust? Or a successor?

Whoever it was sure dropped the ball. The DEA failed to realize Headley had switched sides and was playing them when he went to an LeT training camp in Feb. 2002...and again and again as Headley attended terror training camp after terror training camp. Headley told Indian authorities after his arrest he decided to join LeT in 2001.

And after all that double-crossing, the Government gives him yet another break, sparing him from the death penalty and extradition to India. For what? To get a conviction on Tahawwur Rana, whose involvement, if any, consisted of letting Headley use his immigration business as a cover?