31Dec03-Robert E. Pierre-Terrorism Case Thrown Into Turmoil
Factors Judge Is Considering Include Evidence Withheld From Defense
By Robert E. Pierre
Washington Post Staff Writer
Wednesday, December 31, 2003; Page A05
DETROIT -- The verdict in the nation's first terrorist trial after the Sept. 11, 2001, attacks left both sides claiming victory: two men guilty of terrorism charges and two others cleared of them.
But several recent developments -- including revelations that prosecutors may have withheld key exonerating evidence -- have thrown the case into turmoil. U.S. District Judge Gerald E. Rosen is considering throwing out the convictions and starting over.
Federal prosecutors acknowledged this month that they did not turn over at least two key pieces of evidence that defense lawyers said would have helped their cause. Rosen issued a rare public rebuke of Attorney General John D. Ashcroft for violating his gag order and exhibiting "a distressing lack of care" in his public statements about the case. The two chief prosecutors, unceremoniously removed from the "sleeper cell" case, have entered into a public spat with their bosses.
In addition, Sen. Charles E. Grassley (R-Iowa) has charged that the two prosecutors were removed because one of them -- against the wishes of senior officials at the Justice Department -- testified before the Senate Finance Committee, which Grassley chairs, about how terrorists sell false documents and identities to pay for their activities.
"It looks pretty bad for the government," said David A. Moran, an assistant professor of law at Wayne State University in Detroit. "It's clear that Judge Rosen, who tends to be on the government's side, is disturbed by what happened. What he has to decide now is whether there would have been a reasonable probability of a different outcome."
Robert E. Precht, an assistant dean at the University of Michigan Law School, said that is a high bar because most judges are reluctant to order a new trial.
"That would be a huge step," Precht said. "If this were an ordinary case, the judge might be reluctant to disturb the verdict. But if the judge is worried, given that there is an aura of misconduct, he could order a new trial. It's certainly not automatic."
Abdel-Ilah Elmardoudi, 37, of Minneapolis and Karim Koubriti, 26, of Detroit were convicted in June of conspiring to provide material support to terrorists and document fraud. Ahmed Hannan, 35, of Detroit was convicted of document fraud. And Farouk Ali-Haimoud, 22, of Detroit was cleared of all charges.
Justice Department officials, including Ashcroft, asserted the men were in a sleeper cell associated with al Qaeda and had plans to secure weapons and attack targets in the United States and abroad. Authorities stumbled onto the men while looking for someone else and later termed the apprehension one of the most significant in the United States in the war against terrorism.
Throughout the trial, defense attorneys charged that the prosecution was based on fear rather than facts. The recent revelations have emboldened their criticism.
"We're wondering if there is not more evidence that they've withheld," said Leroy T. Soles, a federal defender who represented Koubriti.
Soles and other defense attorneys are seeking a new trial for their clients. One piece of information withheld was a December 2001 letter, obtained by prosecutors, from a convicted drug dealer who wrote that a key prosecution witness, Youssef Hmimssa, told him while they were in jail together "how he lied to the FBI, how he fool'd the Secret Service agent on his case."
Equally significant, Soles said, was an FBI interview with a former roommate of two defendants who said the men never talked about religion, were lazy, and often drank and smoked. That was in direct contrast to the picture painted by lead prosecutor Richard G. Convertino, who said they were devout Muslims. "That was the heart of our case," Soles said. "We have layers of prosecutorial misconduct."
Convertino said in court recently that the information was not relevant. But at a hearing earlier this month, the prosecutor was chastised by Rosen, who reminded him that was not his decision to make.
The U.S. attorney's office in Detroit contends that although the information should have been released earlier, it would not have changed the verdict. Officials there also claim that Convertino and his boss Keith Corbett defied a direct order to turn over the letter.
That charge is what provoked the ire of Grassley, a longtime advocate of protections for whistle-blowers. He contends that Convertino is being raked over the coals for appearing -- at the behest of a congressional subpoena -- in September before a Senate committee to discuss terrorism. Convertino was removed from the case after notifying his bosses of his plans to appear.
"If they are not reassigned to the Detroit terrorism sleeper case, the conviction could be put at risk and the Department could be seen as hostile to a Congressional witness and his associates," Grassley wrote in a Nov. 10 letter to Ashcroft.
Justice Department officials have declined to comment. Officials at the U.S. attorney's office in Detroit, where Convertino works, did not return calls seeking comment.
William M. Sullivan Jr., a Washington lawyer who is representing Convertino, said Justice Department officials are out to get his client because he testified before Congress. Since then, Sullivan said, officials have pored over past cases searching for missteps.
"DOJ is embarrassed that he testified," said Sullivan, a former prosecutor who once tried cases with Convertino. "They are just acting callously and irresponsibly. They have made life increasingly difficult for him."
Activist groups in Detroit's large Arab American community are equally angered.
"We've been monitoring that closely since Day One," said Imad Hamad, regional director of the Dearborn-based American-Arab Anti-Discrimination Committee. "People really wanted to see a fair trial based on solid evidence that can be proven. So far, what's been portrayed in this case makes people wonder. The conflict is among the government itself. That does not send a good message where it will help people to trust what the government does."
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