U.S. Erred in Terror Convictions

The Justice Department admits possible criminal misconduct. Key charges may be dropped.

By Richard B. Schmitt

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."