Judge, Citing Misconduct, Tosses Terror Convictions

A federal judge in Detroit on Thursday threw out the convictions of two men accused of being in a terrorist “sleeper cell,” saying that Justice Department lawyers, in their rush to convict, acted outside the Constitution and denied the defendants a fair trial.

Citing “prevalent and pervasive” misconduct, U.S. District Judge Gerald Rosen said that there was “at least a reasonable probability” that the jury’s June 2003 verdict in the case -- the first major terrorism trial after the attacks of Sept. 11 -- would have been different “had constitutional standards been met.”

Embracing a scathing new Justice Department self-examination of the prosecution, Rosen said government lawyers had failed to turn over documents and other information that were “clearly and materially exculpatory” of the defendants, and “materially misled the court, the jury and the defense” as to critical evidence.

The judge ordered a new trial but limited it to charges of document fraud.

The Justice Department report singled out the lead prosecutor, Richard G. Convertino, an assistant U.S. attorney in Detroit and a 14-year department veteran, although Rosen did not discuss the prosecutor by name in his opinion.

William Swor, a lawyer representing one of the North African defendants, said the defense would continue to press for dismissal of all charges.

“This was not just a rogue prosecutor. FBI agents were involved in the fraud. Military intelligence were involved in the fraud. Government expert witnesses were involved in the fraud. As the Department of Justice report makes clear, virtually everyone who touched this case from the other side got dirty,” Swor said.

Abdel-Ilah Elmardoudi, 38, and Karim Koubriti, 26, were convicted of conspiracy to provide material support or resources to terrorists, and Ahmed Hannan, 36, was convicted of engaging in fraud and misuse of a visa and other documents. A fourth man was acquitted.

Swor said the government had indicated it was willing to consider bond or release for Koubriti, who has been in jail since the case began. Lawyers for Hannan, who has been confined to a halfway house, hope to win less restrictive conditions on his confinement. Elmardoudi continues to face federal credit card theft charges in a Minneapolis case.

The defendants were never formally sentenced because of doubts about the underlying case.

The judge’s ruling came after the Justice Department released its report Tuesday detailing what it characterized as widespread prosecutorial misconduct in the case, including withholding of documents, e-mails and photographs that would have helped the defense.

The department agreed to join in a defense motion for a new trial and to urge Rosen to dismiss terrorism charges, saying the case was no longer winnable.

The Detroit case had been heralded by Atty. Gen. John Ashcroft as a symbol of the department’s success in the war on terrorism.

The defendants were picked up in their Detroit apartment in an FBI sweep of Arab immigrant communities six days after the Sept. 11 attacks.

At the trial, the government portrayed the group as a terrorist sleeper cell that was waiting “in the weeds” to strike at targets in the United States, Turkey and Jordan.

Among the evidence: a videotape of tourist sites, including Disneyland and Las Vegas, and a day planner that included what government experts said were surveillance sketches. An FBI agent testified that the sketches and the video represented “operational terrorism material.”

But the Justice Department report expressed serious doubts about the evidence. It found that the government withheld information supporting the defense position that the day planner was written by a previous occupant of the defendants’ apartment, a mentally unstable Yemeni man who had delusions about being a general in the Yemeni army, among other issues.

The report also found that prosecutors should have shared with the court or the defense team an opinion it had obtained from the FBI office in Las Vegas that the video was probably not the work of terrorists.

Other information suppressed, according to the report, included a jailhouse letter from a roommate of the star witness in the case that asserted that the witness had lied to the government.

Convertino, the lead prosecutor, was removed from the case last year amid a department ethics investigation. Through his lawyer, Convertino has strongly denied misconduct and said the disputed evidence would not have affected the case’s outcome.

“Certainly, the legal front of the war on terrorism is a battle that must be fought and won in the courts, but it must be won in accordance with the rule of law,” the judge said in his ruling Thursday.

Rosen faulted the prosecution for becoming “invested” in the defendants’ guilt early on. The prosecution then “simply ignored or avoided any evidence or information which contradicted or undermined that view.”

“In doing so, the prosecution abandoned any objectivity or impartiality that any professional prosecutor must bring to his work,” the judge 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.”

He said the Justice Department’s decision to go along with the defense request for a new trial was “legally and ethically correct.”

The judge rejected, without explanation, a defense request that all charges against the defendants be dismissed.