Justice Department criticizes terror case it won

Requesting new trial, it calls legal strategy flawed

September 02, 2004|By NEW YORK TIMES NEWS SERVICE

DETROIT -- The Justice Department assailed its own legal strategy yesterday in the case that brought its first courtroom victory in the war on terrorism.

In a 60-page filing released yesterday, prosecutors asked a federal judge to end the terrorism case against what they once called a "sleeper operational combat cell" based here. They are asking for a new trial of three men only on document fraud.

After nine months of investigation, federal prosecutors compiled a wealth of evidence that they said fatally undermined every aspect of their terrorism case. They also sharply rebuked the prosecutor who led the case, Richard G. Convertino, suggesting he knowingly withheld evidence that he was obligated to share with defense lawyers. Convertino, who was removed as the case prosecutor last year and is the subject of a department investigation, has previously denied accusations that he did anything wrong and has filed a lawsuit against the department.

The developments marked a stunning reversal in a case once hailed by Attorney General John Ashcroft as a major victory in the war on terrorism.

"To have one of the department's few wins move into the loss category is pretty remarkable," said Jonathan Turley, a law professor at George Washington University. "The Detroit case is like a 20-car pileup for Ashcroft. You have an open feud with the former prosecutor and ultimately the abandonment of the case."

Some others were heartened that the department aired its missteps.

"We applaud the Justice Department's call for fairness in this case," said Ismael Ahmed, executive director of the Arab Community Center for Economic and Social Services, in a statement yesterday.

"It clearly demonstrates why we feel that America is such a great country."

Ashcroft declined to comment through a spokesman.

"The filing does speak for itself," said Bryan Sierra, a Justice Department spokesman in Washington. "We are obligated to do the right thing if we feel something went wrong with the case."

In June 2003, two Moroccan men, Abdel-Ilah Elmardoudi, 38, and Karim Koubriti, 26, were convicted on terrorism and document fraud charges. A third Moroccan man, Ahmed Hannan, 36, was convicted of document fraud.

A fourth man was acquitted. The men were never sentenced because of escalating problems over how the case was handled.

"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," federal prosecutors said in their latest filing.

The nine-month review, which had been ordered by the presiding judge, Gerald E. Rosen of U.S. District Court, showed that prosecutors did more than suppress evidence.

The report said that prosecutors also "created a record filled with misleading inferences that such material did not exist."

The filing was largely a rebuke of Convertino, who was removed within months of winning the convictions. What is unclear is why the department allowed Convertino to try the case if it had concerns about his conduct.

The government said yesterday that in the early stages of the investigation, in 2002, there were deep divisions within the department over Convertino's strategy to interview a key witness, Youseff Hmimssa, without letting the FBI take notes, to prevent the defense from gaining access to the information.

"Convertino's approach caused significant controversy within the Department of Justice," prosecutors said, adding that department officials in Washington and Detroit cautioned him against the approach. One FBI agent was said to be "adamantly opposed" to the strategy.

Keith Corbett, Convertino's supervisor and co-counsel on the case, also warned against it.

Tension between Washington officials and Convertino grew, with a federal prosecutor assigned to the case saying in December that he was relegated to being more observer than participant.

Convertino has countered in his own suit that the department is retaliating against him for his agreement to testify about terrorism last year before the Senate Finance Committee. The committee chairman, Charles E. Grassley, an Iowa Republican, is a critic of the department.

"Much of the evidence claimed to have been wrongfully withheld by Rick was evidence he wasn't aware of," said Convertino's lawyer, William Sullivan. "Even if he had been, it was not material to the defense and it would not have led to a different result at the trial."

Convertino, who declined to comment, has said previously that he was assigned only a barebones staff and could not have monitored every piece of information; he has also said the bureaucracy prevented him from seeing some evidence uncovered by the government.

He remains on the Justice Department's payroll, assigned to the Senate Caucus on International Narcotic Control, which is led by Grassley, who has in the past characterized Convertino as a whistleblower. Grassley's office declined comment.

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