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Terrorism Trial Triumph Turns Into an Embarrassment

March 07, 2004|Richard B. Schmitt | Times Staff Writer

WASHINGTON — 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.

For The Record
Los Angeles Times Wednesday February 15, 2006 Home Edition Main News Part A Page 2 National Desk 1 inches; 51 words Type of Material: Correction
Terrorism conviction -- An article in Friday's Section A, as well as four previous articles, about an Ohio truck driver's terrorism conviction said Iyman Faris pleaded guilty in 2003 to collaborating with Al Qaeda in a plot to blow up the Brooklyn Bridge. The plot involved severing the bridge's suspension cables.

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.

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