Terrorism Trial Triumph Turns Into an Embarrassment

Last year, as the first major federal trial of a case in the war on terrorism was about to begin in Detroit, U.S. District Judge Gerald Rosen warned prosecutors not to withhold evidence that might help the defense. “Let’s not play hide the ball on this,” he said.

Now, the groundbreaking conviction that followed is in danger of being overturned, because withholding potentially exculpatory evidence is just what Assistant U.S. Atty. Richard G. Convertino and his staff may have done.

And the public battle that has erupted between Convertino and the Justice Department over his handling of the case -- coupled with similar claims by defense lawyers in two other major cases -- could undermine a key element in the Bush administration’s war on terrorism: its effort to win high-profile prosecutions in order to discourage others from joining terrorist ranks.

Originally, the decisions in the Detroit case were hailed as the first guilty verdicts for the government in a major trial in the war on terrorism. Now, that triumph has turned into an embarrassment.

Convertino has been removed from the case. Atty. Gen. John Ashcroft has appointed a special counsel to investigate whether laws were broken. And the department’s Office of Professional Responsibility is studying possible ethics violations.

The prosecutor, meantime, has sued Ashcroft, saying the Justice Department violated his rights. Convertino says he has been the victim of government retaliation because he complained internally that department red tape had been hobbling the prosecution.

“I can’t stand the thought that my career in the Department of Justice is over because of a case I won and pursued vigorously,” Convertino said in an interview last month. “There is not a day that goes by that I don’t think, ‘How did I get here?’ ”

Convertino, who is on a paid special assignment, claimed in his suit that the Justice Department provided no support during the early days of the Detroit terrorism investigation, which broke six days after the attacks on the World Trade Center and the Pentagon.

As the case progressed, he said, trial decisions were bogged down by a growing bureaucracy of anti-terrorism fighters in Washington.

“The actions of [the department’s counterterrorism chief] and his minions to insinuate themselves into this trial are nothing more than a self-serving effort to justify the existence of his unit,” according to the text of an e-mail in Convertino’s suit. “They have rendered no assistance and, are in my judgment, adversely impacting on both trial prep and trial strategy.” A spokesman for the Justice Department declined to comment.

The issue of withholding evidence has arisen in two other terrorism cases. One involves an Ohio truck driver imprisoned for helping an Al Qaeda plot to blow up the Brooklyn Bridge. The other case, scheduled to come to trial in Boise, Idaho, in April, involves a graduate student accused of aiding would-be terrorists.

The possibility that cases could be jeopardized by prosecutors holding back evidence represents a risk that could have been easily avoided, legal experts say.

“It is a foolish thing for a prosecutor to do because she always runs the risk of reversal or of making the judge angry if it comes out in the middle of trial. Chances are, attempting to hide it is not going to be all that successful or make that much difference,” said Robert Weisberg, a professor of criminal law at Stanford Law School.

The issue of withholding exculpatory material arises from a 1963 Supreme Court case known as Brady vs. Maryland, where the government suppressed an admission in a murder case; the court said the action deprived the defendant of due process of law.

“Most prosecutors play it safe,” said Daniel Richman, a former federal prosecutor now at Fordham Law School. “It is only the odd case where the government fails to turn over Brady material, and the defendants find out about it.”

At the center of the dispute in the Detroit case is a letter to prosecutors from Milton “Butch” Jones, a Detroit gang leader. Jones was once housed in the same prison as Youssef Hmimssa, the government’s star witness in the terrorism case and a former roommate of the defendants.

Jones wrote that Hmimssa “get to telling me how he lied to the FBI, how he fool’d the Secret Service agent on his case,” according to the letter, a copy of which was obtained by The Times.

Convertino, a prosecutor for 14 years, said he and aides concluded the letter by Jones was not credible. The author was a known drug dealer and gang leader who had boasted about a life of murder, mayhem and making millions using young boys to sell heroin.

Last spring, the trial of the four men went forward in Judge Rosen’s Detroit courtroom, with Convertino as lead prosecutor. Defendants Abdel-Ilah Elmardoudi and Karim Koubriti were found guilty in June on terrorism and conspiracy charges. Ahmed Hannan was acquitted of terrorism charges but found guilty on lesser identification fraud charges. The fourth defendant, Ali-Haimoud, was acquitted of all charges.

Then, last fall, after Convertino had been removed from the case, the Jones letter surfaced. A copy was sent to defense lawyers, who said it corroborated other testimony at trial that raised doubts about Hmimssa.

Questioned by Judge Rosen at a hearing in December, Convertino argued that the documents would not have helped the defense.

“That’s not a decision you get to make,” Rosen responded.

In the Brooklyn Bridge case, the issue of holding back exculpatory evidence emerged after defendant Lyman Faris began beating his head against the steel door of an FBI interview room during a debriefing.

Faris announced that everything he had told the FBI previously was untrue, and that he wished to withdraw a guilty plea. Further investigation revealed that he had a history of emotional problems and had once tried to commit suicide.

Learning of his client’s outburst, his lawyer delved into summaries of earlier interviews. He said he found information that raised doubts about whether the accused had ever “cased” the famous Brooklyn span, as had been alleged by the government.

The judge who oversaw the plea agreement declined to allow it to be withdrawn, saying that the plea had been voluntary and the apparent discrepancies in the interviews would not have changed the outcome. Faris, who was sentenced to 20 years in prison, is appealing.

In the Boise case, defense lawyers say prosecutors have not given them meaningful access to transcripts of thousands of telephone conversations and e-mails that were secretly monitored by federal agents.

The government has turned over transcripts it says it intends to use at trial -- about 200 out of more than 20,000.