More than a year ago, federal prosecutors in Detroit lit up victory cigars after a jury found two North African men guilty of aiding terrorists and document fraud.
In a trial that garnered national and international coverage, the first such trial following the attacks of Sept. 11, the convictions appeared to mark a significant victory for the Bush administration.
Now, instead of celebratory stogies, it is the case that has gone up in smoke. In a highly unusual turn of events, the presiding judge dismissed the terror convictions at the request of the Justice Department.
No one could have predicted the stunning reversal, but there were signs early on that the case had serious flaws, according to the 60-page brief the Justice Department presented to U.S. District Court Judge Gerald E. Rosen.
Rosen presided over the nine-week trial, which concluded with the jury finding Abdel Ilah-Elmardoudi and Karim Koubriti guilty of aiding terrorists and document fraud. A third man was convicted only of document fraud and another was acquitted of all charges.
But Rosen ordered the U.S. Attorney’s office in Detroit to review the entire court file last December when it came to light that federal prosecutors failed to turn over potentially exculpatory evidence to the defense.
A nine-month investigation resulted in the government filing the recent motion. In a written opinion issued last week, Rosen ordered that the three men be retried for document fraud only.
Citing the backdrop of the Sept. 11 attacks, Rosen wrote, “the prosecution’s understandable sense of mission and its zeal to obtain a conviction overcame not only its professional judgment, but its broader obligations to the justice system and the rule of law.”
The government investigation, led by U.S. Attorney Craig Morford, lays blame for the debacle primarily on Assistant U.S. Attorney Richard Convertino, the lead prosecutor in the case, who was removed from the case after the trial’s conclusion and according to sources is now under investigation for criminal and prosecutorial misconduct in the case.
“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 … and created a record filled with misleading inferences that such material did not exist,” wrote Morford.
Convertino did not return calls for comment. His attorney, William Sullivan, was disappointed by Morford’s report, but declined to discuss specific allegations.
“As with all his other cases, Rick Convertino approached this one with fairness and principle. The safety and security of his community were uppermost in his mind in the wake of 9/11,” said Sullivan.
Convertino was convinced almost from the outset that the suspects belonged to a terrorist cell, and would not consider evidence to the contrary, according to the Morford report.
The brief also says that some government experts knew — and some tried to warn Convertino — of the case’s weakness long before the trial began. A CIA official doubted Convertino’s claim that a key piece of evidence was a sketch of an American air base as alleged; a U.S. Air Force officer also raised doubts about this assertion.
An FBI agent and Assistant U.S. Attorney Keith Corbett — who was co-prosecutor in the case and is Convertino’s immediate supervisor — both complained about Convertino’s decision to prohibit agents from taking notes during interviews with the government’s star witness, self-proclaimed scam artist Youssef Hmimssa.
So why didn’t anyone attempt to stop this contrived prosecution?
Perhaps there was no political will to derail Convertino from his course. After all, the case was precipitated by the Sept. 11 attacks.
“What happened here is his [Convertino’s] conclusion ended up driving the investigation and may very well have been the result of his personal ambition,” says defense attorney James Thomas, who represented Ahmed Hannan, who was found guilty of document fraud. “He lost his compass. He ignored evidence that was clearly there. He covered up evidence favorable to us and it appears that he actually obstructed as it relates to my client by having an FBI agent put a false statement in a report.”
“What bothers me about what Rick did is how he idly sat by and let witnesses perjure themselves knowingly,” says attorney Joseph Niskar, who also represented Hannan.
David Cole, Georgetown University law professor, says the government was too eager to show it was nabbing terrorists in the wake of 9/11.
The government repeatedly “has overplayed its hand where they are labeling people as terrorists where the facts didn’t support the allegations,” says Cole, who also is the author of Enemy Aliens, Double Standards and Constitutional Freedoms in the War on Terrorism.
“Only later they either dropped the charges or backtracked and released people who were locked up and the like,” he says.
Cole says that the Detroit terror case was “weak.”
“This was always a shaky case. They [the defendants] had no specific target, no specific plans and belonged to no specific terror group. They were charged with material support to do some unspecified act in an unspecified place and in the unspecified future time,” says Cole who not only faults the line prosecutors in the case, but their superiors.
FBI agents were looking for an alleged terrorist when they raided a Detroit apartment about a week after Sept. 11 and arrested three Arab men who lived there. (A fourth man was arrested in North Carolina a year later.) The agents also collected material that later became key evidence in the terror trial, including a day planner formerly owned by a mentally ill man. The prosecution claimed the two sketches in the planner were of a military hospital in Jordan and an American air base in Turkey. The defense argued that the drawings were doodles.
The case was made a top priority by U.S. Attorney John Ashcroft. Before the trial he said the men were terrorists with links to the Sept. 11 attacks — a violation of a gag order issued by Rosen to prohibit the lawyers or witnesses from talking to the press and influencing jurors. Ashcroft later retracted the remarks, only to again violate the gag order when he praised Hmimssa for cooperating with the government by testifying against the defendants. When the convictions were secured, Ashcroft claimed a major victory in the war on terrorism.
But Convertino’s zeal and Ashcroft’s outbursts were not the only problems with the case. Hmimssa, who pleaded guilty to several counts of credit card fraud, had ample reason to cooperate with the prosecution. In exchange for his testimony, he was promised consideration for a reduced sentence. He faced up to 47 months.
Hmimssa was the sole witness who accused the defendants of being Islamic zealots set on harming the country — the entire case hinged on him.
Also troubling were the repeated complaints by defense attorneys that the prosecutors did not turn over documents. Their complaints seemed to fall on deaf ears.
But Morford’s report says that some government officials raised serious doubts about the prosecution’s theory of the case long before the trial began.
William McNair, the now-retired chief information officer in the CIA’s directorate of operations, visited Detroit in October 2002 to review the confiscated day planner.
According to Morford’s report, McNair did not believe that one sketch was an American airbase in Turkey and he did not recall seeing the purported hospital sketch. CIA experts who reviewed the alleged airbase sketch at McNair’s request did not believe it contained “any useful information,” says the report. In McNair’s version of events, recounted in the report, Convertino “was shopping for an opinion consistent with his own.” Despite five or 10 phone conversations in which McNair tried to share his opinions, Convertino “didn’t much care what I was saying.” In court documents, Convertino denied that McNair shared his dubious take on the day planner sketch.
Much like McNair, according to the Morford report, U.S. Air Force officers suspected that the drawing was not of an airbase. They suspected it was instead a drawing of the Middle East.
The report suggests that Convertino and FBI agent Mike Thomas, who helped investigate the terror case, also were aware of the Middle East map theory long before the trial, though this was never shared with the defense.
For instance, in June 2002, an Air Force officer visited Detroit to meet Convertino and Thomas. According to the report, Thomas told the officer that the day planner sketch might depict the Middle East. But Convertino stated adamantly it is not a map of the Middle East and that the “topic was not up for discussion.” That’s the account of the Air Force officer as related in the report.
Convertino and Thomas denied knowing about the Middle East map theory before the trial, said the report.
Perhaps the most disturbing revelation to come out of the government inquiry was the evidence that could have been used to impeach Hmimssa. According to the government, Hmimssa harbored anti-American views, accusations Hmimssa made against the defendants. A Sept. 25, 2001, newspaper article was found in the trash at an Iowa apartment Hmimssa moved to after living with the defendants. The article had a photograph of pro-American fighters in Afghanistan over which was written “BAD MUSLIMS.” A former landlord told the grand jury that Hmimssa said that “any soldier who lands in Afghanistan will die.” However, this information was never provided to the defense.
“The failure to disclose the above impeachment material is compounded by … Convertino’s decision to limit the documentation of statements made by Hmimssa during debriefings after he began cooperating in mid-March 2002,” according to Morford’s report.
Hmimssa was never called before the grand jury that indicted the defendants.
Convertino also prohibited the FBI from taking notes during debriefings with Hmimssa, which caused “significant controversy” within the Justice Department. FBI agent James Brennan, who helped investigate the terror case, opposed this practice. Corbett, Convertino’s immediate supervisor, also objected but allowed it.
FBI agent Thomas testified at trial that Convertino did not instruct him not to take notes. The report suggested that Thomas perjured himself with that statement.
Defense attorneys demanded copies of Convertino’s typed and handwritten notes, but Judge Rosen refused to make him turn them over. And although Convertino provided the court with a version of typed notes, “other typed versions have recently surfaced,” said the Morford report. “Not surprisingly, there are limited but not inconsequential discrepancies between these versions, supporting defense counsel’s claim that Hmimssa’s testimony evolved over time,” said the report.
From the start, defense attorneys felt certain the prosecution was withholding evidence. They complained vehemently about this throughout the trial. Rosen was somewhat responsive, but he also told the defense to “stop whining.”
The defense lawyers specifically requested three reports of conversations the FBI had with Brahim Sidi, an associate of Hmimssa’s who said that the defendants were not Islamic radicals. Although the reports are dated Jan. 3, 11 and 25, 2002, the defense did not receive them until May 5 — after Hmimssa had completed his testimony.
Defense attorneys claimed the prosecution’s stalling prevented them from adequately cross-examining Hmimssa. They also accused the government of intentionally deporting Sidi to Morocco in December, “thereby depriving the defendants of his testimony at trial.”
At the time, Convertino apologized for the missing Sidi reports, saying that it was an oversight.
Defense attorneys also complained repeatedly that the prosecutors blindsided them with witnesses, including a woman who provided incriminating testimony about one of the defendants; her testimony has since been debunked.
By the third week of the trial, Rosen was also expressing concern at the prosecutors’ tactics when they presented surprise evidence to the jury without notifying him in advance.
“The government is playing this awfully close to the vest, not only with the defense, but with the court,” said Rosen.
Ashcroft further tarnished the case — though his intent may have been to bolster it — when he violated the judge’s gag order at a press conference in Washington, D.C., while the trial was under way. Ashcroft praised Hmimssa, who had just finished giving several days of testimony.
“Such cooperation is a critical tool in our war against terrorism,” said Ashcroft of Hmimssa’s testimony.
The defense made a motion for a new trial. In fact, they made several motions for a new trial, but Rosen opted to rule on them when it concluded.
Months after the convictions, it came to light that two potential exculpatory documents were not turned over to the defense.
One of them was a letter from the infamous drug lord Melvin “Butch” Jones, who was Hmimssa’s cellmate at Milan Federal Correctional Institution south of Ann Arbor while Hmimssa awaited trial. The letter raised doubts about Hmimssa’s credibility and could have possibly been used to impeach him at trial. Assistant U.S. Attorney Eric Straus, who was assigned the terror case after Convertino was removed, discovered the letter and provided it to Rosen. The judge held a four-hour hearing on the matter then ordered that the entire file be reviewed. It was that review that led to the government’s recent motion to toss out the terror convictions.
But one can’t help but wonder why Jones’ letter, which Convertino’s superiors were aware of as early as February 2002, did not come to light sooner. Did anyone at the U.S. Attorney’s office get suspicious when the defense had not presented it at trial?
Should the government have kept a closer eye on Convertino?
Cases of this magnitude are normally vetted with supervisors, says law professor Cole.
“You sit down with the prosecutor and go over the evidence. My guess is they did something along those lines.”
But James Robinson, former U.S. attorney for the Detroit office, says it is not possible for supervisors to go over every detail of a case. He says supervisors must “rely on people closest to the evidence.”Ann Mullen is a Metro Times staff writer. She can be reached at firstname.lastname@example.org