Judge: Murder trial can proceed without baby's body

UPPER DARBY The body of 7-month-old Hamza Ali, who disappeared from an Upper Darby home in early August, has not been found, but District Judge Harry Karapalides ruled Monday that the mystery should not prevent Ummad Rushdi from being tried for the baby's kidnapping and murder.

Defense attorney Michael Malloy argued that the charges facing Rushdi were inconsistent. If Rushdi killed the child before taking him out of the house, it was not a kidnapping. And if he did not kidnap him, he could not legally be charged with a murder in the commission of a felony.

"They want to throw everything up against the wall and see what sticks," Malloy said. But Karapalides ruled that Rushdi could stand trial on both charges.

Zainab Gaal, the mother of the child, testified Monday that Rushdi, with whom she lived before her son's disappearance, had made harsh comments about the baby and once grabbed him so hard that his shoulder swelled. "He always had issues with Hamza," said Gaal, 20. "He would say, 'He's an idiot baby. He's a negative-energy baby. He doesn't belong here.'"

On the night of Aug.3, Gaal said, Rushdi took Hamza from her room and chided her for "disobeying" him when she tried to take the baby back. "If you don't stop, you will not see Hamza alive," Gaal recalled his saying. Once she saw that Hamza was asleep in the room next door, where Rushdi had taken him, she went back to sleep. She woke up when Rushdi came to her room in the middle of the night to get his car keys. In the morning, Rushdi and the baby were gone.

Rushdi was arrested Aug. 7, and the next day, he told a prison warden that he wanted to confess. Upper Darby Police Capt. George Rhoades Jr. testified that Rushdi interrupted him while he was reading him his Miranda rights. Rushdi told him that he shook Hamza to get him to stop crying, Rhoades said. When the baby stopped breathing, he tried administering CPR.

Rushdi said he buried the baby, but has refused to tell investigators where, said Police Superintendent Michael Chitwood. He speculated that Rushdi was trying to avoid an autopsy that would reveal that accidental shaking was not the cause of the child's death.

Police officers testified that they searched for the child for more than a month, using boats, helicopters, and dogs.

Prosecutor Stephanie Wills said outside the courtroom that the murder case could stand even without a corpse. "We can still prove murder without a body. We'll establish beyond a reasonable doubt that there's death."

But Chitwood said that finding Hamza's body would be "key."

"That's important to the family," he said. "It's important to the mother. It's important to the investigation."

Abdullahi Omar, the father of the baby, agreed. "Hopefully, they will find out the truth," he said. "I wish there was something I could do."