A federal judge today in Washington, D.C., dismissed a whistleblower lawsuit brought by Convertino related to the Justice Department investigation — and a newspaper article about it — into his conduct at that trial.
In a 32-page opinion, Chief U.S. District Judge Royce Lamberth dismantled roughly 10 legal arguments put forth by Richard Convertino in his own court filings related to his lawsuit. Lamberth concluded that no legal basis existed for Convertino’s lawsuit to continue.
Convertino, a former assistant U.S. attorney in the Detroit U.S. Attorney’s office, sued his former employer in a lawsuit that is part of the fallout from the criminal case involving the first post-Sept. 11 terrorism arrests. He alleged his privacy and some constitutional rights were violated by Justice Department employees who leaked word of an investigation into his work.
As part of his discovery, he sought the identity of anonymous Justice Department sources used by Detroit Free Press reporter David Ashenfelter, who wrote an article about the investigation. Two years ago, U.S. District Judge Robert Cleland determined Ashenfelter did not have to reveal his sources. Convertino has appealed that order. The case originally stems from the arrests of three men by federal agents in Detroit just six days after the Sept. 11, 2001, attacks. The men were living in a southwest Detroit apartment that was thought to have once housed an alleged al-Qaeda operative. A fourth suspect was later added.
As the lead federal prosecutor on the case, Convertino tried the four men, accusing them of operating a sleeper cell that planned, among other alleged acts, an attack on a Turkish air base. One man was acquitted, another was convicted only of document fraud and two were convicted of conspiring to support terrorism and document fraud.
But shortly after the trial, now chief U.S. District Judge Gerald Rosen, who had presided over the trial, learned the prosecution had documents that were not turned over to the defense and ordered a review of the case.
Just a month later, the Detroit Free Press published Ashenfelter’s story that quoted anonymous Justice Department officials who said the government had started an investigation into Convertino. Later that year Rosen overturned the "terror trial" convictions in a case widely cited as a textbook example of prosecutorial excess.
Convertino resigned as a federal prosecutor in 2005. In 2006 he was indicted on obstruction of justice and other charges for which he was eventually acquitted.
Convertino filed his original whistleblower suit in 2004, naming as defendants the U.S. Department of Justice, former Attorney General John Ashcroft, then-U.S. Attorney in Detroit Jeffrey Collins and three other Justice Department officials. All but the Justice Department have been dismissed.
Convertino alleged, in part, that his privacy had been violated when sources in the department talked with Ashenfelter, describing the investigation into him and his work.
After unsuccessfully attempting to gain court orders for Ashenfelter to name his sources, Convertino is still pursuing the identities. He is seeking to have others at the Detroit Free Press questioned about Ashenfelter’s source’s identity.
But Lamberth refused to delay the Justice Department’s summary judgment motion while Convertino pursues the source’s identity. “After all, if the Eastern District of Michigan compels discovery and Convertino is in fact able to obtain the information he seeks, he is free to move for reconsideration in light of newly discovered evidence,” Lamberth wrote. “This Court is wiling to prolong this litigation further.
This Court will not commit itself to delaying this litigation for what could easily become several more years based merely on Convertino’s speculative hope that things will suddenly go his way in Michigan.
Now in private practice based in Plymouth, Convertino did not respond to an e-mailed request for comment. He has represented several police officers, most recently winning acquittal this week for a Michigan State Police trooper in Lansing accused of raping two women. His attorney, Stephen Kohn, is out of the country and couldn’t be reached, an attorney in his Washington D.C. firm told Metro Times.
“It was a very good development for Mr. Ashenfelter, and I think just generally for journalists who need to protect their sources,” said Herschel Fink, Free Press attorney.
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