U.S. District Judge Gerald Rosen has agreed to a request from prosecutors in the U.S. Department of Justice to throw out the convictions of members of a suspected terror cell in Detroit because of prosecutorial misconduct. The department’s request was harshly critical of Assistant U.S. Attorney Richard Convertino, who apparently rejected a CIA witness whose analysis differed from the prosecution theory, failed to turn over crucial evidence to the defense as the law requires and tolerated or encouraged misleading or false statements from prosecution witnesses.
The decision and the request suggest a willingness to try to correct mistakes due to overzealousness in the legal battle against terrorism. But the fact that it took strenuous efforts from defense attorneys and the judge in the case suggests that the intense desire for a conviction in the first high-profile anti-terrorist case after 9/11 led to lax oversight or looking the other way in the face of clear prosecutorial misconduct until it could no longer be ignored.
This case demonstrates the importance of maintaining an independent judiciary to check such temptations.
When charges were brought against three Moroccan men, Abdel-Ilah Almardouti, Karim Koubriti and Ahmed Hannan, Attorney General John Ashcroft hailed the indictment as a great victory in the struggle against terror, characterizing the three as a “sleeper operational combat cell.” The three were convicted in June 2003 on terror and document fraud charges.
As Timothy Lynch, director of the Cato Institute’s Project on Criminal Justice, who followed this case closely, said, defense attorneys in the case argued throughout that the prosecution was illegally withholding information from the defense. The complaints led to a nine-month investigation at higher levels of the Justice Department, which led to the request to throw out the convictions and retry the men simply on document fraud charges.
Defense attorneys said they would seek to have these lesser charges dismissed.
One can see how the desire to get a victory (which for prosecutors at every level means a conviction) in a terror case could have led to overzealousness on Convertino’s part. Although some Justice Department officials now say they were concerned about his handling of the case from the beginning, he was also getting strong signals that a conviction would be a feather in everybody’s cap.
What prevented a wholesale miscarriage of justice was the presence of a judge acting as an impartial adjudicator. The fact that until slapped down by the Supreme Court the administration tried to prevent judicial involvement in cases like Jose Padilla, Esmael Hamdi and the prisoners at Guantanamo suggests it has been slow to get the message.