Los Angeles Times
September 2, 2004
WASHINGTON — The Justice Department conceded Wednesday that in its zeal to
win convictions in a terrorism case in Detroit last year, prosecutors engaged
in "a pattern of mistakes and oversights" that may constitute criminal
misconduct.
The case was the first major terrorism prosecution after
the Sept. 11 attacks and had been hailed by U.S. Atty. Gen. John Ashcroft
as an example of the government's successful campaign to disrupt terrorist
"sleeper cells" in the country.
In its 60-page court-ordered filing,
the Justice Department supports the Detroit defendants' request for a new trial
and states that it will no longer pursue terrorism charges against
them.
A ruling by the judge in the case could come as early as
today.
The filing details a wide range of misdeeds, while offering a
rare glimpse inside the government's war on terrorism. It includes allegations
that the main prosecutor in the case — Richard G. Convertino —
disregarded dissenting views from experts and suppressed or withheld evidence
that might have been helpful to the defense.
Prosecutors accused four
defendants, arrested in Detroit in a roundup of Arab immigrants a week after
the Sept. 11 attacks, of conspiring to launch attacks in the United States,
Jordan and Turkey.
Federal agents had been looking for another man when
they went to a second-story apartment in the middle of the night and found the
men, some of whom had worked at Detroit Metropolitan Airport. They were
arrested and charged with canvassing the airport and other locations. In
Washington, Ashcroft announced that federal officials believed that the men had
prior knowledge of the Sept. 11 attacks, a statement he later
retracted.
In June 2003, a jury in Detroit convicted two of the men on
charges including conspiracy to provide material support for terrorism. A
third defendant was convicted of document fraud, and a fourth was acquitted.
When problems in the case came to light last fall, Convertino, an assistant
U.S. attorney in Detroit, was removed from the case. In February he sued the
government, claiming that he was never given adequate support.
Among
other findings, the report issued late Tuesday found that prosecutors had
withheld a jailhouse letter discrediting the government's star witness and used
a federal defendant in a separate cocaine case to translate sensitive
audiotapes.
The report found that prosecutors had suppressed evidence
supporting a defense position that sketches found in a day planner in the
defendants' Detroit apartment were the doodlings of a mentally ill man —
rather than evidence that the defendants were casing possible terrorist
targets, as the government asserted at trial.
And it also revealed
that the department's public integrity section launched a criminal
investigation into the handling of the case. A Justice Department spokesman
declined to elaborate or say who was the target.
The findings come as
vindication for defense lawyers who, throughout the case, had complained that
the government withheld evidence and was not playing fairly.
The
Justice Department's admissions present a counterpoint to claims by the Bush
administration that it is winning the war on terrorism, which have been
reverberating in speeches this week at the Republican National Convention in
New York.
It also underscored the government's mixed success in
prosecuting terrorism cases since Sept. 11. Although the Justice Department
has won numerous highly publicized guilty pleas — often by dropping the
most serious charges — it has been handed partial or outright defeats in
major terrorism cases it has taken to trial. Most recently, a computer student
in Boise, Idaho, was acquitted of federal charges that he used the Internet to
raise money and recruit people for terrorist causes.
U.S. District
Judge Gerald Rosen is expected to rule as early as today on whether to order a
new trial on document fraud charges alone. Defense lawyers are expected to se
ek a dismissal of all charges and the defendants' release.
"There is
actual evidence that there was a deliberate withholding of evidence that is
inconsistent with the government theory of terrorism and consistent with our
defense, and that is a subversion of justice," said James Thomas, a Detroit
lawyer who represents one of the defendants.
"That is not a way to
win a war on terror. That is not what the Constitution is talking about. It
certainly isn't the way that prosecutors should conduct business," he
said.
A lawyer for Convertino strongly disputed that characterization.
"Even if Rick was aware of the material that the government characterizes as
disclosable to the defense, that material was insubstantial and cumulative and
would not have encouraged the reasonable probability that a different verdict
would have resulted after trial," attorney William Sullivan Jr. said.
"As with every other case he has prosecuted, Rick Convertino pursued this one
fairly and justly, with th e safety and security of his community uppermost in
his mind in the wake of 9/11," Sullivan said.
The case began unraveling
late last year after Rosen learned that prosecutors had not turned over to the
defense a letter from a Detroit gang leader who was once held in the same
prison as the star witness for the government. The letter suggested that the
witness, Youssef Hmimssa, a former roommate of the defendants who had a history
of credit card fraud, had lied to the FBI. Hmimssa testified that they were
all Islamic fundamentalists involved in terrorist activities.
Convertino, a 14-year Justice Department veteran, became the target of an
ethics investigation by the department's Office of Professional Responsibility.
After being removed from the case, the prosecutor sued Ashcroft, saying the
department had violated his rights and that he was a target of retaliation
because he had complained internally that department red tape had hobbled the
prosecution.
In its report, the Justice Depa rtment acknowledged that
the letter about Hmimssa should have been turned over. But the inquiry also
found additional evidence that the department now says should have been shared
with the defense, and exposed deep differences of opinion within the government
over the handling of evidence and testimony.
The report raised new
doubts about a central piece of the government's case — a day planner
found in the defendants' apartment that the government said included
surveillance sketches of a Turkish air base used by American fighter jets and a
military hospital in Jordan.
The report said the
government attempted to create the "false impression" at trial that "diplomatic
red tape" prevented them from obtaining photos of the hospital to compare to
the sketches. In fact, the report said, the facility bore little, if any
resemblance to the sketches.
The report also found that a retired CIA
officer, whom Convertino had consulted about the supposed air base sketch, told
the prosecutor on numerous occasions that he did not believe the sketch
"conveyed any useful information," and that the former officer believed
"Convertino was shopping for an opinion consistent with his own."
The
report also cast doubt on the testimony of an FBI supervisory agent in Detroit
who said that a videotape found in the defendants' possession included "casing"
shots of Las Vegas, Disneyland and New York.
The report found that the
prosecutors had evidence that the Las Vegas office of the FBI disagreed with
that view, but did not turn that information over to the court or the defense.
"In its best light, the record would show that the prosecution
committed a pattern of mistakes and oversights that deprived the defendants of
discoverable evidence (including impeachment material) and created a record
filled with misleading inferences that such material did not exist," the
department said in its memo. "Accordingly, the government believes that it
should not prolong the resolutio n of this matter pursuing hearings it has no
reasonable prospect of winning."