Apr 9, 2006
Terrorism Prosecution Implodes: The Detroit 'Sleeper Cell'
By Barry Tarlow
-- -- In the three years after September 11, 2001, the Bush Administration had
almost no convictions on terrorism charges to show for its effort. The rounding
up of about 5,000 people for preventive detention produced no such convictions.
David Cole, The D.C. Gang That Couldn’t Shoot Straight, L.A. Times, Sept. 19,
2004, at M5. By September 2004, about 500 people were deported, but each
deportation order required a finding that the individual was not connected to
terrorism. Id. Although the administration touted a record of 100 convictions in
terrorism cases, almost all of those were for minor offenses, not terrorism
charges. Id. For example, Sheikh Abdirahman Kariye, who was arrested amid much
fanfare on false allegations that his baggage had explosive residue, was only
indicted on charges of Social Security fraud. He later pled guilty to lying
about his income and using false identification to obtain health insurance
benefits. Even the charges that purported to assert a link to terrorism, like
the indictment leading to the guilty pleas of the Buffalo Six, charged not
actual terrorism, but providing material support for terrorists.
administration’s most significant terrorism convictions involved the hapless
“shoe bomber,” captured by an astute flight attendant, and the jury’s guilty
verdict as to the three men accused of being part of the so-called Detroit
“Sleeper Cell.” Id. As a court recently found, however, even that was three out
of four too many.
The Detroit “Sleeper Cell” Case, United States v.
Koubriti (U.S. Dist. Ct. E.D. Mich. Case No. 01-CR-80778), is a disturbing
chapter in the larger War on Terror. Three of the four defendants in the case
were arrested within a week of the September 11 hijackings. When the file came
across the desk of administration officials who were hungry for a win in the
newly minted War on Terror, they seized upon it. This had been the first trial
on charges of terrorism after September 11 and the only one to yield a jury
conviction. After a long investigation and a trial in 2003, a jury ultimately
returned two convictions on terrorism-related charges, one conviction of
document fraud, and one acquittal.
Despite that result, it would soon
come to light the case had a seamier side. Too eager to put notches in its belt,
the prosecution committed grave misconduct. It simply ignored and suppressed
statements by key government witnesses who did not reach the conclusions the
lead prosecutor wanted. It buried the opinions of experts who suggested that
critical documents or jottings were not likely terrorist diagrams and that the
defendants, while at most being common fraudsters, were not terrorists. After
the verdict and a court-ordered review of the prosecution, the Department of
Justice (DOJ) found itself compelled to admit a pattern of misconduct and to
recommend that the court grant the defendants’ motions for post-trial relief.
Although the court ultimately granted post-trial relief, a number of
questions remain unanswered. Who is responsible for the misconduct that
permeated the Detroit case? Is the case just the work of an overzealous
prosecutor and a few agents, as the DOJ contends, or is there more to it? In
these troubled times, can those accused of terrorism receive a fair trial in
which they are prosecuted by lawyers attempting “to do justice” and in which
their fate is objectively determined by an impartial jury?
case appears to be part of a pattern of situations in which zealous policies
originating at the highest levels of the Executive Branch go awry, with
mid-level officials left holding the bag. “[T]op officials at the Justice
Department were involved in almost every step of the [Detroit] prosecution . . .
.” Danny Hakim & Eric Lichtblau, After Convictions, the Undoing of a U.S.
Terror Prosecution, N.Y. Times, Oct. 7, 2004, at A1. In addition to the numerous
mid-level officials connected to the case, Barry Sabin, Chief of the
counterterrorism section for the DOJ’s Criminal Division since January 2003, was
intimately involved in the drafting of the final version of the indictment
When You’re Right, You’re Right: Seeing The World Through Blue-Blooded
Some people are still under the illusion that people who are not
guilty, such as the men in the Detroit “Sleeper Cell” Case, will not be charged,
much less convicted of crimes. But the charging and conviction of innocent men
in the Detroit case is not entirely surprising. The case is symptomatic of what
happens when the executive or prosecutorial power is combined with a zealous
belief in the righteousness of one’s cause and the infallibility of one’s
judgment. Wilfully blind commitment to ends over means inevitably leads to a
bending or breaking of the rules.
For example, Oregon lawyer Brandon
Mayfield who had converted to the Muslim faith was arrested on charges of
involvement in the train bombings in Madrid, Spain. There was no proof, however,
that Mayfield had ever been to Spain anytime after 9/11. One major problem was
that a supervising FBI expert, who first conducted the fingerprint analysis for
the DOJ, rushed to judgment in analyzing a hazy copy of a fingerprint obtained
from a bag of explosives in Spain. He was confident he had the right man.
Although “a reliable match would normally entail at least 12 to 13 matching
characteristics,” the expert viewed the cloudy print and made his judgment based
on only seven similarities. See Rukmini Callimachi, Panel Clears Lawyer of Role
in Bombings, L.A. Daily J., Nov. 17, 2004, at 4. The expert was a senior person
in the department. Given his status, the other concurring analysts did not dare
to question him, although they should have had reason to pause and revisit this
conclusion. Id. In fact, “[p]olice in Spain had expressed doubts early on about
[the] U.S. investigators’ claims . . . .” Tomas Alex Tizon & Sebastian
Rotella, U.S. Frees Oregon Lawyer Held in Madrid Bombings: Spanish Police Say a
Fingerprint that Seemed to Link Him to the Case Belongs to an Algerian, L.A.
Times, May 21, 2004, at A21.
Fortunately, weeks later, U.S. District
Judge Robert Jones dismissed the charges, and the FBI formally apologized to
Mayfield and his family. See Sarah Kershaw & Eric Lichtblau, Bomb Case
Against Lawyer Is Rejected: Dismissal Comes After F.B.I. Faults Poor Fingerprint
Images, N.Y. Times, May 25, 2004, at A16. But the case stands as an example that
innocent people, even respected citizens, can be put through the wringer based
on the, wrong-headed prejudgments of zealous prosecutors and agents. That,
unfortunately, is just what happened in the Detroit case.
Making It Up
As You Go: Creating A Case In Your Own Image
Few recent cases provide
such a stark example of how prosecutorial misconduct perverts the search for
justice as the Detroit “Sleeper Cell” Case, United States v. Koubriti (U.S.
Dist. Ct. E.D. Mich. Case No. 01-CR-80778). This was the first post 9/11
terrorism prosecution in the country, and it involved not only prosecutorial
misconduct, but also the abuse of the Executive Power in the War on Terror.
Undoubtedly, the stakes were high and the spotlight was on. Yet in such
circumstances, theoretically one is supposed to feel the pressure to get things
right, to dot every “i” and to cross every “t.” History of course has
demonstrated that in troubled times, that is not what happens. Despite help from
the DOJ, the CIA, military consultants and numerous FBI agents, the prosecution
here, including the lead prosecutor, AUSA Richard G. Convertino, with the
assistance or tacit approval of his supervisors, resorted to a grave pattern of
misconduct to win the terrorism convictions of these innocent men.
hindsight, perhaps Convertino’s handling of the case comes as little surprise.
He has a reputation in Detroit for being a zealous gunslinger. He has been
described as “a prosecutor cut in the Ashcroft mold: religious and righteous,
patriotic but polarizing,” as well as “abrasive” and “antagon[istic].” Richard
Serrano & Greg Miller, Terrorism Case Shows U.S. Flaws in Strategy, L.A.
Times, Oct. 12, 2004, at A16.
Sources close to the case say the
characterizations are accurate. Convertino was known to push the envelope. He
has the sort of rough-up-the-bad-guy mentality and style that endears him to law
enforcement officers and rankles others who hesitate to prejudge guilt before
the evidence is in. In fairness, when he testified before the Senate Finance
Committee, he presented himself as a committed but reasonable prosecutor
fulfilling the oath he had sworn to uphold. His approach, however, has not
escaped the attention of the federal courts. In 1995, for example, the Sixth
Circuit Court of Appeals discussed his posing of “concededly improper
questions.” United States v. Wiedyk, 71 F.3d 602, 607 (6th Cir. 1995).
It is a mistake, however, to think that Convertino was alone in
wrongfully prosecuting the case. Veteran defense attorney and NACDL member
William W. Swor, one of the lawyers in the Detroit case, said, “This was not a
rogue prosecutor. This was a rogue prosecution. It took more than one person to
create this fraud.”
Indeed, the wrongful convictions were a year and a
half in the making, and the case was surrounded by error from the start. On
September 17, 2001, less than a week after the attacks in New York and
Washington, agents of the Detroit Joint Terrorism Task Force descended upon a
Detroit apartment at 2653 Norman Street. The search team was composed of “FBI
Special Agents Mike Thomas, Paul Heyard and Mary Ann Manescu; INS Agents Joe
Gillette and Mark Pilat, State Department Special Agent Edward Seitz and FBI
language specialist Nazih ‘George’ Moaikel.” United States v. Koubriti (Koubriti
Suppression), 199 F. Supp. 2d 656, 659 (E.D. Mich. 2002).
looking for Nabil Al-Marabh, “No. 27” out of about 200 people on the FBI’s
terrorist “watch list” whom agents wanted to question. Ronald J. Hansen, Craig
Garrett & David Shepardson, FBI Arrests 3 Men at Detroit Home, Detroit News,
Sept. 19, 2001. Al-Marabh reportedly had some connection with Osama bin-Laden
that prosecutors now admit was never supported by evidence. However, Al-Marabh
had already moved on. He had applied to the state for a driver’s license listing
an address in Three Oaks, Michigan, more than 200 miles away from Detroit on the
Indiana border toward Chicago. In fact, he was arrested in Chicago just days
after the raid. David Shepardson, Charlie Cain & Craig Garrett, Detroit
Fugitive Arrested Near Chicago, FBI Says, Detroit News, Sept. 20, 2001.
None of that gave the agents any pause on September 17 or thereafter.
Not satisfied with their lack of success in locating Al-Marabh, they cornered
the occupants of his former apartment, defendants Karim Koubriti, Ahmed Hannan
and Farouk Ali-Haimoud), questioned them and searched the residence, deciding
midway through the fishing expedition to obtain a warrant.
officers stumbled upon a tired, hapless bunch who appeared to meet no one’s
definition of sophisticated and dangerous terrorists. Hannan and Ali-Haimoud
were sleeping, and Koubriti answered the door in his boxer shorts. Agents saw in
these exhausted, quiet, and admittedly cooperative men the workings of a
fearsome terrorist cell. What could possibly lead to this conclusion? Like many
persons new to a country, Koubriti and Hannan worked some odd jobs while they
searched to find suitable, steady employment. At one point, for example, they
had been off-site dishwashers at a catering company servicing planes at the
airport. Koubriti Suppression, supra, 199 F. Supp. 2d at 659–62. Although the
job did not actually take them to the airfield or the airplanes, they received
airport-related employee badges, which the investigating agents considered to be
The raiding agents were also influenced by the national
origins and the apparent religion of the men. They, as well as prosecutors and
others connected with the case, looked at Koubriti, Hannan and Ali-Haimoud and
saw visions of Islamic fundamentalism among persons of Middle Eastern descent.
Their misperceptions led them far from the truth. Koubriti’s sister described
him as a person who rarely attended a mosque and who “did not go to class [in
college], but instead hung out in a coffee shop with friends, smoked hashish and
drank.” Ann Mullen, Deliberations Begin: Fate of Four Alleged Terrorists in the
Hands of a Jury, Metro Times Detroit, May 21, 2003. A former roommate of two
defendants told the FBI that “the men never talked about religion, were lazy,
and often drank and smoked.” Robert E. Pierre, Terrorism Case Thrown Into
Turmoil: Factors Judge Is Considering Include Evidence Withheld From Defense,
Washington Post, Dec. 31, 2003, at A5.
While the agents perceived aliens
who were up to no good, the accused were lawful permanent residents of the
United States. Koubriti and Hannan each came to the United States during the
previous year by winning an immigration lottery in Morocco, where they never had
been acquainted. Ali-Haimoud immigrated lawfully with his mother.
Regardless of the facts, the agents searched for evidence to confirm
their preconceived notions and found what they described to be false identity
documents, as well as a day planner, a tourist videotape, audio tapes of
speeches delivered in Arabic and the old work badges from the dishwashing jobs.
Koubriti Suppression, supra, 199 F. Supp. 2d at 659–62. Inside the day planner
were some wild scrawlings. According to the agents’ characterization in the
affidavit supporting the search, these were sketches of an airport and flight
patterns, with references to locations in Turkey. Amid the furor still palpable
from the attacks in New York and Washington, the agents arrested Koubriti,
Hannan and Ali-Haimoud. Ronald J. Hansen, Craig Garrett & David Shepardson,
FBI Arrests 3 Men at Detroit Home, Detroit News, Sept. 19, 2001.
next day, the prosecution filed a complaint charging the men with possession of
false documents, and the case was assigned to United States District Judge
Gerald E. Rosen. AUSA Convertino assumed control of the prosecution team.
Despite the thinness of the evidence, news reports went out and the case took on
an elevated profile. Discussing the same scrawlings that CIA agents would later
find to be uncompelling as evidence, one unidentified government official said
ominously, “[t]he references to the American military base in Turkey are
chilling.” Id. (emphasis added). With keen foresight Imad Hammad of the
America-Arab Anti-Discrimination Committee remarked, “In the past we’ve had many
cases where law enforcement rushed to judgment in actions that were found
baseless. . . . I don’t think it will benefit any of us to spread fear.” Id.
Given the high profile of a case based on finding men who did not even
have any noteworthy fraudulent documents, let alone terrorist plans or
propaganda, perhaps it is unsurprising that the prosecution team continued to
build its case upon foundations that were questionable at best. Interestingly,
the government is now pursuing not these document fraud charges, but rather some
unrelated charges against Koubriti and Hannan for faking auto accident injuries
to obtain insurance money. See 2 Ex-Terrorism Suspects Face Fraud Charges, N.Y.
Times, Dec. 16, 2004, at A31.
During the “Sleeper Cell” investigation,
federal agents found themselves an informer Youssef Hmimssa, and in May 2002
they offered him a deal, raising all the dangers of informer testimony. See Best
Testimony Money Can Buy: Ethical Rules and Witness Payments: RICO Report, The
Champion (April 1995). Hmimssa was a fraudster who had immigrated to Chicago
from Romania. Before entering the United States, he had traveled widely
throughout Romania making contacts and getting into trouble in Bucharest and
other places. He was accused of engaging in illegal money changing and other
offenses in areas dominated by Romanian crime syndicates. Hmimssa also traveled
to Morocco on a false passport. When he entered the United States using phoney
documents, he claimed to have nothing of value. Within six months, he had his
own apartment full of new furniture in northern Chicago with indications that he
might be running with the Romanian crime syndicate there. One witness
interviewed by the FBI had “information that Hmimssa was working for a Romanian
gang . . . .” (Defs.’ Mot. for Judgment Notwithstanding the Verdict or New
Trial, at 24.) By the time AUSA Convertino caught up with him, Hmimssa was
facing federal charges of document fraud, credit card theft and credit card
counterfeiting in three different districts. Despite all this, the prosecution
was more than willing to deal in an effort to win the desired convictions, no
matter how bad Hmimssa might turn out to be.
Although Hmimssa had only
stayed with the defendants for about two weeks, he was willing to say they were
terrorists and that during those two short weeks they tried to recruit him into
terrorist activities. See Ann Mullen, Deliberations Begin: Fate of Four Alleged
Terrorists in the Hands of a Jury, Metro Times Detroit, May 21, 2003. “In
exchange for his cooperation and testimony at trial [the AUSA] stipulated in a
Rule 11 Agreement to a sentencing range of 37 to 46 months and further agreed
to, and has, in fact, requested a more than 50% downward departure from that
range for ‘substantial assistance.’ ” United States v. Koubriti (Koubriti Brady
Materials), 297 F. Supp. 2d 955, 959 (E.D. Mich. 2004).
important, Hmimssa’s cases were consolidated so that he could avoid consecutive
sentencing, and the reported losses from his frauds were disingenuously capped
at $70,000.00, rather than the many multiples of that amount, which he actually
stole. At one point, Hmimssa might also have been offered an S-visa in exchange
for his testimony, allowing him to avoid deportation.
testimony would become critical to the investigation and the trial. Not only did
he provide five days of “evidence” in a seven-week trial, id., but also he was
responsible for more than one round of amendments to the indictment to add
terrorism-related charges and a fourth defendant, Abdel Elmardoudi.
Throughout the case, the actual charges against the defendants continued
to shift. One version of the indictment included a charge of providing material
support to terrorists, in violation of 18 U.S.C. § 2339A, but it remains unclear
to this day just what evidence the prosecution honestly could cite to support
that charge. The statute prohibits, in part, any person from providing anyone
with “currency . . . , lodging, training, safehouses, false documentation or
identification, . . . weapons, lethal substances, explosives, personnel, . . .
and other physical assets, except medicine or religious materials” intending
that they be used for certain enumerated offenses, like the destruction of
national defense premises, the malicious destruction by explosives of the
property of the United States and the destruction of certain aircraft. 18 U.S.C.
§ 2339A(a),(b). However, the evidence supporting the charge was thin or
In the final version of the indictment, filed just weeks
before trial, Karim Koubriti, Ahmed Hannan, Farouk Ali-Haimoud and Abdel
Elmardoudi faced charges of conspiring to provide material support or resources
to terrorists in violation 18 U.S.C. §§ 371 and 2339A (Count I); engaging in
fraud and misuse of visa, permits and other documents (Count 3) and conspiracy
to do the same (Count 2), in violation of 18 U.S.C. §§ 1546(a) and 2 and 371,
respectively; and fraud and related activity in connection with identification
documents in violation of 18 U.S.C. § 1028(a)(6) and 2 (Count 4).
exactly was the conspiracy to provide material support? That, too, was never
exactly clear. In the Third (and final) Superceding Indictment, the prosecution
alleged that the men intended to provide assistance to the Armed Islamic Group
(GIA) in Algeria. A few weeks later during trial, and without any reasonable
basis to support this earlier theory, the prosecution changed course and
emphasized a theory that the men intended to falsify immigration documents to
smuggle “brothers,” or Muslims sympathetic to radical causes, into the United
States to purchase weapons in support of terrorism. The theory stood or fell
almost entirely upon the testimony of Hmimssa.
Getting Burned In The
If the prosecution’s theory of the case was an amorphous one
essentially asserting that the men were terrorists and so must be guilty of
something, the defense team adopted the theory that the entire case was a
fabrication made up of national fear, smoke, mirrors and lies.
Hmimssa, Koubriti, Hannan, Ali-Haimoud and Elmardoudi had no assets. Koubriti,
Hannan and Ali-Haimoud had been sleeping on the floor “with no furniture to
speak of and their clothing kept in duffel bags, suitcases and garbage bags.”
Koubriti Gag Order, 305 F. Supp. 2d at 727. When the weight of the federal
government descended upon them, they relied on the one constitutional right that
would eventually save them, their right to counsel. The court appointed the
Federal Defender’s Office to represent Koubriti, and other counsel were
appointed to represent Hannan, Ali-Haimoud and Elmardoudi.
for the accused, especially given the difficulty of defending this type of case,
all the lawyers served “in the highest and best tradition of appointed counsel
and the legal profession, and the American justice system,” United States v.
Koubriti (Koubriti Dismissal), 336 F. Supp. 2d 676, 680 (E.D. Mich. 2004). Rick
Helfrick and Leroy Soles of the Federal Defender’s Office are seasoned trial
lawyers, skilled in complex motion practice who have excellent reputations for
their work and dedication to their clients. Hannan was represented by Attorney
James C. Thomas, a longtime NACDL member and a former treasurer of the American
Board of Criminal Lawyers with about thirty years of experience in defense of
sophisticated criminal matters, and his dedicated co-counsel, NACDL member Joe
Niskar. Bill Swor and Margaret Raben, who represented Elmardoudi, are both
longtime NACDL members and members of the board of directors of Criminal Defense
Attorneys of Michigan with outstanding reputations and decades of criminal
defense experience. Finally, Robert M. Morgan, another NACDL member who was
appointed to represent Ali-Haimoud, is a former AUSA and strike force attorney
who has argued before the United States Supreme Court in Michigan v. Harvey, 494
U.S. 344 (1990) (holding that a statement taken in violation of the Sixth
Amendment right to counsel can be used for impeachment purposes), and who has
been described by his peers as a “criminal defense attorney par
These seasoned lawyers concluded almost from the beginning,
that something was truly wrong with this prosecution. From the onset of charges
against Hannan, for example, Jim Thomas made persistent discovery requests for
numerous critical documents. AUSA Convertino repeatedly claimed that all the
relevant discovery had been turned over, and as happens all too often, the court
took him at his word. Unbeknownst to Judge Rosen, however, Convertino continued
to conceal a mountain of material.
For example, Thomas persistently
asked for the medical records of a dead insane man, Ali Ahmed, who for a
significant period of time possessed the day planner containing the so-called
terrorist casing sketches. The defense surmised that the so-called “sketches” of
military targets in the planner were simply the jottings of a delusional loon
who died before Koubriti and Hannan ever moved to Michigan, and the lawyers
sought evidence confirming this fact. Before his death, Ahmed was involuntarily
committed and had a thick psychological file. For months, no one supposedly
could locate the records. Astonishingly, midway through the trial, the defense
learned that the hospital had turned the records over to the prosecution
pursuant to a grand jury subpoena. When caught red-handed, AUSA Convertino
presented the documents to the court for disclosure to the defense. Jim Thomas
noticed that one document was still missing; namely, the document involuntarily
committing the man as insane and as having delusions of being a general in the
military. With dogged persistence, Thomas ultimately forced the prosecution to
produce the exculpatory document.
As another example, during the
discovery process several defense lawyers repeatedly asked for material relating
to the impeachment of Hmimssa. When AUSAs Convertino and Corbett were not
forthcoming, the defense team wrote letters to the United States Attorneys’
Offices in Chicago and Iowa identifying the information counsel had received so
far and asking whether more exculpatory materials existed. Fortunately, these
prosecutors met their constitutional obligations to provide helpful information.
Only through this kind of persistence, which the prosecution called a “cheap
shot,” would the defense ultimately obtain the information undermining the cases
against their clients.
By constantly seeking these types of exculpatory
materials, Thomas and the other lawyers continued to put the issue of the
Detroit prosecution team’s evasiveness and misconduct before the court, even as
the AUSAs continued to deny that they had anything responsive to the requests.
Indeed, the long and troublesome process led Robert Morgan, Ali-Haimoud’s
lawyer, to comment that one of the key lessons to be learned from this case is
that defense lawyers must “never stop asking – literally. Ask as many people as
you can and as often as you can to get the information your clients need.”
When the trial, which might be described as a security pageant, finally
began in March 2003, the case was showing few signs of improvement. The war in
Iraq started during jury selection. Despite counsels’ motions, Judge Rosen
approved strict security measures that were bound to prejudice the jurors. To
begin with, the jury was anonymous. Further, the jurors met at a secret
location, rode directly into a separate entrance of the courthouse in two vans
with dark-tinted windows, received armed federal escorts during their movements
throughout the building, and passed not only through ordinary court security but
also through a second metal detector at the courtroom door. Once inside the
courtroom, more than ten court security officers, rather than the usual one or
two, waited to guard the room. These measures reinforced the atmosphere of
terror the prosecution was trying to create and no doubt eroded whatever
presumption of innocence the jury might initially have been willing to
entertain. See Linda Deutsch, Blake Jurors Are Confused on Presumption of
Innocence, L.A. Daily News, Nov. 17, 2004.
objections throughout trial were also of little immediate avail. As in most
criminal cases, the objections were often met with the all too familiar, “That
will be denied, counsel.” Over defendants’ objections, the court admitted into
evidence more than 100 hours of audio recordings from cassette tapes seized at
the apartment during the initial mistaken raid. These recordings contained at
most fifteen brief passages in which, depending upon one’s translation and
interpretation of the materials, one might hear something disapproving of
Western ideals. There was no evidence that any of the accused had actually
listened to the tapes, and complete translations of the tapes were never
provided to the defense. In fact, the prosecution’s expert translator apparently
obtained on the Internet his so-called expertise in Islam and Salafism, the
teachings of a radical sect identified in the Third Superceding Indictment and
central to the prosecution’s theory.
There is also some indication that
the expert was a member of the Phalengist party, a right-wing Lebanese Christian
sectarian party founded by Pierre Gemayel to quell emerging Muslim interests.
The other translators presented different problems. The rebuttal expert
continued to translate the tapes even after the court’s cutoff date had passed.
AUSA Convertino also paid a man named Marwan Farhat, a violent criminal involved
with Hezbollah associates who was awaiting cocaine charges, to summarize each of
the tapes. At trial, the tapes turned into a huge and fruitless distraction,
helping to obscure the weakness of the prosecution’s case.
faulty tapes, the case essentially relied upon three key witnesses: the
untrustworthy Hmimssa and two experts, Paul George and Mary Peterson. FBI
Supervisory Special Agent Paul George ostensibly had come from a career in
intelligence, and his background was shrouded in secrecy. Before entering the
service, he claimed he graduated Phi Beta Kappa in college and reportedly
graduated summa cum laude from a law school. Following a pre-trial foundational
hearing during which the defense team was only permitted to elicit limited facts
relating to his background, the court determined he had the relevant expertise.
The problem with all this nondisclosure was that George was the key
expert witness for the prosecution who “explained most clearly . . . [t]he
government’s theory of the case” (Government’s Consolidated Resp. Concurring in
Defs.’ Mots., at 11), and he provided critical testimony at trial about
terrorist tradecraft and the activities of clandestine cells. The bits of
evidence gleaned from his hearing testimony and from a summary written by AUSA
Convertino disclosed just before the foundational hearing suggested that Agent
George assumed other identities. Without access to his background, however, the
defense was unable to conduct any meaningful background investigation and was
obstructed from conducting an effective cross-examination at the hearing and,
more important, from challenging his credibility before the jury. See Defendants
Prevail in Challenges to Soft Expert Testimony: RICO Report, The Champion (May
As to the basis of Agent George’s testimony, the court had
permitted him to testify on the condition that the prosecution would present lay
factual witnesses to provide the foundation, who would then be subject to
cross-examination. But that’s not what really happened at trial. Given a lack of
foundation as to why he relied on the assertions of Hmimssa, a known fraudster,
Agent George resorted to evasive muttering and doubletalk. When the court
questioned him at trial about why investigators ruled Hmimssa out as a terrorism
suspect, George said that investigators could corroborate enough of Hmimssa’s
assertions to make him credible. He then added:
“[AGENT GEORGE]: It was
a continued corroboration. And as you’re aware, there were other – other
testimony that we could not bring in.
"MR. THOMAS: Wait a minute.
“MR. SWOR: Oh, my God.
“MR. MORGAN: Whoa.
“THE COURT: I
order the jury to disregard that. I tell the jury to disregard that.
“MR. NISKAR: Did we say objection?
“THE COURT: I think I got the
(Defs.’ Mot. for Judgment Notwithstanding the Verdict or New
Trial, Exh. K, Draft Tr. 04/29/2003 at 364.)
Rather than providing the
defense with the real basis of his opinion and opening the testimony up to a
fair cross-examination, the prosecution suppressed essential evidence and
permitted the agent to allude to purported facts wholly beyond the evidence.
This allows the prosecution soft expert simply to create a scenario about the
defendants’ purported involvement in the charged conduct and the informer’s
reliability, relying on the force of credentials that cannot be challenged and
the imprimatur of the United States to fill the gaps.
Little could be
more offensive to the defendants’ constitutional right fairly to confront the
witnesses against them. Such “overview testimony” has recently surfaced in the
courts and has been widely condemned. The problem is that a so-called expert
testifies about a mix of expert opinion evidence that theoretically will be
produced at trial and his alleged experience investigating similar crimes. This
mixture produces an outwardly persuasive theory of the prosecution’s case, which
is essentially impossible to attack through cross-examination. See generally
United States v. Casas, 356 F.3d 104 (1st Cir. 2004) (discussing the dangers of
“overview testimony” and the error of its admission into evidence); United
States v. Griffin, 324 F.3d 330 (5th Cir. 2003) (same).
prosecution also offered, relied upon and failed to correct false testimony. For
example, the testimony of key witnesses Agent George and Lieutenant Colonel Mary
Peterson was so misleading and fraught with problems that when Judge Rosen later
ordered the DOJ to audit the entire prosecution, the DOJ’s post-trial
recommendation to set aside the convictions would largely be due to problems
surrounding their statements. (Government’s Consolidated Resp. Concurring in
Defs.’ Mots., at 14–41.) Each of these two purported experts provided critical
testimony as to the so-called “casing materials” upon which Agent George relied
heavily in his damning testimony.
What were the “casing materials”?
First, there was the videotape of American tourist attractions, which Agent
George thought to be sinister. The tape was a hodge-podge of miscellaneous
innocuous recordings of news, cartoons and musical footage, as well as some
vacation footage including shots of the MGM Grand Hotel and other buildings in
Las Vegas. Unfortunately for the prosecution, the Las Vegas FBI and U.S.
Attorney’s Office expressly disagreed with Convertino’s and George’s
characterization of the vacation tape as a “casing” of the landmarks.
to the purportedly inculpatory statements on the tape, it is unclear what the
speakers, a group of young Tunisians touring the country, even said. The
voiceover on the tape had a Tunisian dialect, which is difficult to translate
for those not specifically familiar with it. Before and during trial, defense
counsel repeatedly argued that this problem made some of the translations
inaccurate. As it turns out, in 2002 Detroit FBI Special Agent Michael Thomas
wrote an email recognizing the difficulty of translating the dialect, but the
email was never provided to counsel until post-trial motions were filed.
Instead, AUSA Convertino actually attacked the theory at trial. (Id., at 40.) He
disregarded the testimony of the defense translator, Naima Benkoucha, who,
unlike the prosecution’s hired guns, was a department store manager who had
never testified in court or worked as a translator before. Ann Mullen,
Deliberations Begin: Fate of Four Alleged Terrorists in the Hands of a Jury,
Metro Times Detroit, May 21, 2003.
In addition, there were the so-called
surveillance sketches that newspaper reports had described as “chilling.” The
Third Superceding Indictment incorporated a convoluted charge accusing the men
of conspiring to provide material support for a conspiracy to attack military
targets like the Incirlik Air Base in Turkey. This
conspiracy-to-support-a-conspiracy theory allowed the prosecution to cloud the
issues and introduce evidence of questionable relevance, including the so-called
“sketches.” These chicken-scratches are so barren of content that it is
difficult for the untrained eye to see in them anything but the meanderings of a
seriously deficient artist. In this case, the honest, trained eye sees the same
As to a sketch that Colonel Peterson testified as
depicting the Incirlik an air base in Turkey, William McNair, who worked in U.S.
intelligence for more than 40 years, including work as an Information Review
Officer for the Directorate of Operations at the CIA, reviewed the sketch and
shared it with numerous CIA document analysts, paramilitary persons and people
in the CIA’s Counter Terrorism Center. With all their training, they each opined
that the sketch did not seem useful and most likely was not the work of a
terrorist cell. (Government’s Consolidated Resp. Concurring in Defs.’ Mots., at
35.) More to the point, no one to whom McNair talked was willing to testify that
it was the work of a cell. This exculpatory evidence was never disclosed to the
When McNair communicated these opinions to AUSA Convertino
over a series of telephone calls, Convertino “ ‘didn’t much care what [McNair]
was saying.’ . . . Convertino was not really asking for the CIA’s opinion. . . .
It was McNair’s opinion that Convertino was shopping for an opinion consistent
with his own.” (Id., at 35.) Similarly, on the eve of a visit by AUSA Convertino
to Turkey, the sketch was presented to a high ranking official in the
Intelligence Division of the Turkish National Police. The official said the
drawing “did not look like any terrorist sketch that they had seen in the past.”
(Id. at 33.) Needless to say, this evidence was also not disclosed.
Early on in the trial, Air Force Special Agent Goodnight submitted a
critical report and addendum that called into question the key testimony of
Colonel Mary Peterson. Colonel Peterson, who was flown in five days before trial
and remained something of an unknown quantity, testified that she was previously
stationed at Incirlik Air Base and that the sketch was of that base. This was
based on four key factors, including the notion that a scribble represented a
hardened aircraft shelter (HA. Goodnight, by contrast, opined that “Although
this report provides an analysis of the day planner, other versions of the
analysis also exist. . . . [T]he speculative portions of the sketch were ‘sold’
to the AUSA too strongly as fact. . . . [I]t was apparent that [the AUSA]
believes strongly in the HAS theory and wants someone from AFOSI [i.e., Air
Force Special Investigations] to testify that the drawing is in fact a HAS. . .
. [I]t might be difficult to convince a jury that the drawing represents a HAS,
particularly since the door of the alleged HAS shows it opening from the rear
[contrary to fact].” (Id., at 29.)
Ostensibly, the HAS theory originated
with Peterson and she gave the jury the false impression that official agreement
on the theory was unanimous. Goodnight’s report, as well as other evidence,
revealed that this was not so. (Id., at 30–31, 31 n.19.) Goodnight cautioned
Convertino against relying on the theory. Indeed, rather than a military
outpost, defense attorney James Gerometta saw that the drawing looked more like
an amateur outline of the Arabian Peninsula, consistent with the defense’s
theory that the insane Ahmed had scribbled it out as part of one of his
delusions of grandeur. Not surprisingly, the defense never learned of
Goodnight’s expert opinion.
Still relying on the
conspiracy-to-support-a-conspiracy theory to connect the defendants with any
terrorist activity, the prosecution interpreted another “sketch” to depict a map
to the Queen Alia Hospital in Jordan. Although the AUSA elicited misleading
testimony suggesting a consensus among government experts as to the reference of
the “map,” undisclosed internal reports revealed that the consensus was a myth.
In fact, experts stated that they could not establish a correlation
between the scrawling and the site. Although prosecution witnesses led the jury
to believe that no photographs of the actual sites could be obtained to permit a
comparison with the sketch, this was simply a lie. At AUSA Convertino’s request,
photographs were made available to him. The photographs did not contain
so-called landmarks, like a conjured dead tree, that witnesses emphasized.
Indeed, the DOJ later concluded after trial that “[i]t is difficult, if not
impossible, to compare the day planner sketches with the photos and see a
correlation between the drawings and the hospital site . . . .” (Id., at 23.)
Although the defense repeatedly attempted to obtain photographs of the sites,
this exculpatory evidence was never made available. The prosecution team led
defense counsel and the jury to believe that it did not exist.
Similarly, the informer Hmimssa was allowed to concoct defendant
Elmardoudi’s purported involvement in a flight school visa document scam, even
though the FBI 302s of the other persons involved revealed that Elmardoudi had
nothing to do with that transaction. Hmimssa was also permitted to testify that
he learned of Elmardoudi’s surname through the identity documents of the
latter’s sister, which he supposedly viewed in the summer of 2001. Yet contrary
to Hmimssa’s tale, months after he agreed to cooperate the government filed an
amended indictment still failing to identify the surname.
also elicited misleading testimony from James Sanders, who claimed to have held
the day planner and to have gone with Koubriti and Hannan to obtain identity
documents. Sanders claimed to have met the men in an employee lunchroom when
they were co-workers. In fact, his employment in the same company actually only
overlapped with theirs by a handful of days, during which they only worked on
the same day three times and never on the same shift. This testimony also
directly contradicted notes taken by the FBI Agent who interviewed Sanders soon
after Defendants’ arrest and wrote comments like “did not get asked for ID,” and
“never knew K-H personally” and wrote that another person “is the one that
actually asked him about the ID’s not K & H.” (Defs.’ Mot.for Judgment
Notwithstanding the Verdict or New Trial, Exh. B.) None of these or other
falsehoods were brought to the attention of the defense, the court or the jury.
The case was built on liars and their lies. (Id., at 12–20.)
prosecution also prevented witnesses favorable to the defense from being
available to testify. For example, they concealed the identity of one of the
people whose 302s directly contradicted Hmimssa’s testimony, Brahim Sidi, along
with his statement that Elmardoudi was not a terrorist. Sidi had received a deal
in a separate criminal case by pleading nearly a year before the trial to one
count of a conspiracy to defraud the United States by obtaining false social
security cards and numbers. In August 2002, he was sentenced to time served. In
fact, he was deported just six weeks before the “Sleeper Cell” Case was
originally scheduled to start. There is also some suggestion that he and
witnesses like him were offered a chance to stay in the United States if they
would “remember” events in a more helpful light.
By the time Sidi
testified at trial via cell phone, the reception was poor and he could not
receive documents to refresh his recollection. Perhaps worst of all, the defense
was left to use its own sleuthing skills to unearth Sidi’s identity and
testimony without prosecutorial compliance with Brady (Id., at 25.) If the
defense had not persisted for months in trying to locate Sidi, the exculpatory
and impeaching evidence would never have come to light. The prosecution also
concealed the identities of seven secret witnesses and prevented the defense
from interviewing Sanders by rushing him out of court.
suppressed by the prosecution also contained a wealth of helpful documentary
evidence. The AUSAs failed to produce documents relating to the mental illness
of Ali Ahmed, the author of the so-called “chilling,” “terrorist” sketches and
scrawlings. Worse, because of AUSA Convertino, some potential documentary
evidence simply did not exist. He adopted a policy contrary to the advice of
other prosecutors, even including his trial partner, AUSA Keith Corbett,
prohibiting any note-taking but his own during interviews of Hmimssa; 302s just
Finally, after trial had already begun, the prosecution
turned over some travel documentation from Turkey, telling the court it had just
been received. In fact, the witness who produced the documents said he turned
them over to the prosecution team six months before trial. Not satisfied with
its effort to conceal evidence, the government buttressed the testimony of the
fraudster Hmimssa through improper vouching.
See Some Prosecutors Just
Don’t Get It: Improper Cross and Vouching: RICO Report, The Champion (Nov.
2004). AUSA Convertino engaged in a prototypically overreaching closing
argument. For example, he vouched for his witness Hmimssa, saying, “What did
[Hmimssa] get out of this? . . . Coming down with a bullet-proof vest with a
target in his head?” (Defs.’ Mot. for Judgment Notwithstanding the Verdict or
New Trial, at 22.)
AUSA Convertino did not mention Hmimssa’s sweetheart
deal to the jury, although defense counsel reminded them of the bias. Similarly,
although the AUSA had specifically adopted the policy of not taking notes during
his interviews with Hmimssa, he reportedly told the jurors that they “should
acquit the defendants if they believed the claim that the government spent 30
hours with their star witness before taking any notes, thereby allowing him to
get his story straight.” Ann Mullen, Deliberations Begin: Fate of Four Alleged
Terrorists in the Hands of a Jury, Metro Times Detroit, May 21, 2003. Despite
the misleading, sarcastic tenor of AUSA Convertino’s argument, that’s exactly
what the jurors should have done. As Attorney Rick Helfrick countered in his
closing argument, “This case [was] based on fear, half-truths and deception.”
Down, But Not Out
In June 2003, the jury returned its
verdicts. Although Robert Morgan’s client, Ali-Haimoud, was acquitted on all
counts, the other men were not so fortunate. Hannan was convicted of conspiracy
to commit immigration document fraud, in violation of 18 U.S.C. §§ 371, 1546(a)
and 2. The jury found Koubriti and Elmardoudi guilty of conspiring to provide
material support to terrorists in violation of 18 U.S.C. §§ 371, 2339A and of
the same type of conspiracy to commit document fraud as Hannan. While the
underlying frauds could carry penalties of up to 25 years for Koubriti and
Elmardoudi and 10 years for Hannan, the conspiracy convictions themselves
carried a maximum penalty of five years.
While waiting for the
transcripts to be completed, on October 15, 2003, the defense filed a 51-page
motion on seeking either an acquittal or a new trial. Citing many of the errors
recounted above, the motion set forth seven independent bases for the requested
relief, five citing the court’s errors and two highlighting serious and
prejudicial prosecutorial misconduct. As to the court’s decisions, the defense
recounted how Judge Rosen failed to diffuse the jury’s knowledge of extensive
trial security measures, to follow proper procedures in resolving translational
disputes over tape transcriptions, and to authorize the production of important
defense witnesses, as well as the court’s improper commentary and questioning of
Critically, the motion also detailed how prosecutorial
misconduct permeated the case, tainting the verdict. Point-by-point, the defense
argued that the tactics of the prosecution team violated due process, hampered
the rights to a fair trial and to confront adverse witnesses, and undermined the
presumption of innocence, which already has precious little actual traction in
the minds of many jurors. See Defs.’ Mot. for Judgment Notwithstanding the
Verdict or New Trial; Linda Deutsch, Blake Jurors Are Confused on Presumption of
Innocence, L.A. Daily News, Nov. 17, 2004.
Champions Of Justice By
What went so wrong with the trial that the DOJ was eventually
required to recommend not only that the court set aside the convictions and
grant a new trial, but also that it dismiss the terrorism-related charges? Why
did Judge Rosen feel compelled to dismiss those charges and reverse the
convictions and grant a new trial on the minor charges? Koubriti Dismissal,
supra, 336 F. Supp. 2d 676. It is reasonably clear that the DOJ did not have a
sudden change of heart, leading to a heightened sensitivity about constitutional
rights. Rather, one would expect them to admit as little as they could, which
still turned out to be so bad that the convictions had to be set
The defense motions were the beginning of a snowball. In the
months following trial, AUSA Richard Convertino was relieved of his authority,
an investigation began, and AUSA Eric Straus took over the case. Straus soon
came across a crucial letter by a locally notorious criminal, Milton “Butch”
In December 2001, Jones was in a maximum-security cell next to
Hmimssa. Jones said that his concern for national security led him to take
verbatim notes of his conversations with Hmimssa, who claimed to have lied to
the FBI and the Secret Service and told him “about terrorist things.” Koubriti
(Brady Motion), supra, 297 F. Supp. 2d at 959–60. Despite comprehensive
discovery motions and repeated Brady/Giglio disclosure requests, “[n]either the
letter nor the notes were turned over to Defendants by the Government either
prior to or during trial, [even though] the Government prosecutors had the
letter, and, on its face, the letter contains Brady and/or Giglio material.”
Id., at 958.
The letter was originally given to Convertino long before
trial by fellow AUSA Joe Allen, a man described as a “hard-core, true-believer.”
Allen was handling Jones’s case, and despite his leanings, he recognized the
importance of these statements. He took something of a career risk in disclosing
them. When Hmimssa testified without any mention of the letter, AUSA Allen grew
suspicious. As it turns out, Convertino claimed he suppressed the letter simply
because he believed it was not credible. This is a bizarre proposition that the
court later specifically rejected during a hearing, (Government’s Consolidated
Resp. Concurring in Defs.’ Mots., at 13 n.5), and that, if correct, would make
Brady a dead letter. The legal error was so obvious that the Criminal Chief of
the Detroit U.S. Attorney’s Office, Alan Gershel who is widely known for being a
straight-shooter, later called it a “no brainer.” (Id., at 44.)
narrowly upon some of the potential prosecutorial misconduct, the court held an
evidentiary hearing in December 2003 concerning the letter. There, AUSA Gershel
admitted the error of not disclosing the letter, but he and his fellow AUSAs
Convertino and Corbett gave conflicting testimony about their actions with
respect to it. Knowing that someone was lying and still reluctant to reverse the
convictions, Judge Rosen ordered the prosecution to conduct a thorough review of
their documents to determine what else might have slipped through the cracks.
See Koubriti Dismissal, supra, 336 F. Supp. 2d at 678. That way, the court could
receive more information as to who might be lying and could also reserve
judgment as to whether the misconduct was, according to the Brady standards,
material to the outcome of the trial.
Following Convertino’s filing of a
Whistleblower lawsuit in February 2004, the DOJ handed leadership of the review
over to Craig Morford, the No. 2 lawyer in the United States Attorney’s Office
in Cleveland, Ohio who has a sterling reputation and a solid track record of
high-profile prosecutions. In the ultimate response submitted by Morford, the
DOJ remained silent in the face of most of the defense’s accusations. But
following a painstaking, nine-month review of the record, on August 31, 2004,
the DOJ issued its fifty-nine page response to the defendants’ motion for
acquittal, in which it detailed how the case, built upon the testimony of Agent
George and the informer Hmimssa, simply could not stand. Agent “George based
[his] conclusions [about the accuseds’ actions] on (1) his opinion that the
drawings and videotape seized from the defendants constituted operational
terrorist ‘casing material’; (2) the testimony of Hmimssa; and (3) the
defendants’ acquisition of fraudulent identity documents and their involvement
in other fraudulent activities . . . .” (Government’s Consolidated Resp.
Concurring in Defs.’ Mots., at 11.) Each of these legs of the stool was infected
with error. (Id., at 13.)
As to Hmimssa, the DOJ admitted that it had
erred in failing to disclose the Jones letter, as well as evidence of documents
and testimony containing Hmimssa’s caustic comments generally deriding the
United States. This combined with AUSA Convertino’s anti-note-taking policy and
Hmimssa’s portrayal of himself throughout trial “as secular, loyal to the United
States and, at least since his arrest, entirely forthcoming,” was enough for the
DOJ to concur in counsels’ motion for a dismissal of the terrorism-related
charges. (Id., at 43.)
As to the purported corroborating evidence, AUSA
Morford wrote that in a critical FBI memorandum memorializing Hannan’s
post-arrest statements, a key inculpatory paragraph was added at Convertino’s
request. The 302’s author could not recall a statement in which Hannan
supposedly admitted to knowing that certain false documents were in the
apartment, and there was no record of it in the interview notes. (Id., at
51–52.) The post-trial investigation also revealed that Convertino paid a
violent criminal, Farhat for his summaries of the audio tapes. Of course, Farhat
“received an unusually large sentence reduction recommendation by AUSA
Convertino” in exchange for his assistance. (Id., at 50.)
The bulk of
the DOJ’s admissions came in connection with the mythical “casing materials,”
which supposedly showed that the accused were “casing” possible targets for
terrorism, and upon which Special Agent George and Lieutenant Colonel Peterson
had so heavily relied. Citing all the problems set out above, the DOJ admitted
that the prosecution had fallen far short of constitutional and ethical
standards in its failure to disclose exculpatory materials like the internal
government documents showing that George’s and Peterson’s opinions did not
reflect a universal consensus among the government’s own available experts.
Seeing all these errors in a case that was built on lies, the DOJ reached the
inescapable conclusion that the wrongful convictions must be overturned and a
new trial granted on what few charges of document fraud might be tenable. It
submitted its response saying as much on August 31, 2004, just days before it
was due to complete an additional discovery response estimated at approximately
Persistence Pays Off
Just three days later on
September 2, 2004, Judge Rosen, a George H.W. Bush appointee, entered a historic
order in the case. He dismissed the terrorism charges under 18 U.S.C. §§ 371 and
2339A and granted a new trial for Karim Koubriti, Ahmed Hannan and Farouk
Ali-Haimoud on minor charges of document fraud. See Koubriti Dismissal, supra,
336 F. Supp. 2d 676. Judge Rosen eloquently wrote:
“For those of us who
work in our Nation’s courts and whose responsibility is the administration of
justice — including not only judges — but prosecutors and defense lawyers,
perhaps our greatest challenge will be to ensure that th[e] new [terrorist]
threat is confronted in a way that preserves our most fundamental and cherished
civil liberties. 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. Those of us in the justice system, including those prosecuting
terror suspects, must be ever vigilant to insure that neither the heinousness of
the terrorists’ mission nor the intense public emotion, fear and revulsion that
their grizzly work produces, diminishes in the least the core protections
provided criminal defendants by our Constitution. To permit anything less — to
allow our constitutional standards to be tailored to the moment — would be to
give the terrorists an important victory in their campaign to bring us down
because they will have caused us to become something less than we are — a nation
of laws based upon constitutional foundations developed over more than two
centuries of jurisprudential evolution.” Id., at 680.
notions like the rule of law usually do not appear in an opinion in an
unexaggerated way that makes concrete sense. If it happens, it is worth a second
look. When a judge such as Judge Rosen, a smart, ambitious, hard-working and
fairly conservative Republican loyalist who is certainly not considered a civil
libertarian, writes such an opinion, it is of particular interest. After all, in
the same opinion, Judge Rosen remarked, “jury verdicts should be disturbed only
upon a court’s firmest conviction and belief — formed after the most searching
and comprehensive review of all of the evidence and issues — that a miscarriage
of justice has occurred and a defendant’s fundamental constitutional rights
violated.” Id. at 679. People who know Judge Rosen recognize that when he said
that, he meant it.
If the DOJ had to be compelled by such extraordinary
evidence of misconduct to recommend dismissal of the terrorism-related charges,
the same might be said of Judge Rosen in granting the motion. Upon reading the
eloquent passages of his opinion, it is easy to view the judge as sympathetic to
the defense. But the defense rarely won a significant point before him along the
way. The real champions of liberty here are the defense lawyers who fought at
every step, even after the trial was apparently lost, to unearth the truth
hidden under a mountain of misleading statements and the suppressed evidence.
In his opinion, Judge Rosen did not independently review many of the
claims of Koubriti, Hannan and Elmardoudi. He relied instead upon the DOJ’s
limited, albeit devastating, admissions. Judge Rosen probably would have reached
the same result even if the DOJ had written its response differently, and the
DOJ probably surmised this. But it is worth noting that Judge Rosen (and,
understandably, the DOJ) declined to explore the misconduct and to clarify the
precedent on any matter, such as whether the court, not the prosecutor, has the
authority to decide whether statements impeaching key prosecution witnesses are
Brady material or are “credible.” Instead, the judge simply said that the DOJ’s
admitted errors cumulatively infected the trial beyond repair. And if the DOJ
had not been as forthcoming or had been faced with a slightly more defensible
legal position, it is unclear whether the opinion would have been written the
Perhaps Judge Rosen was simply recognizing that no meaningful
fight over the proper outcome remained and he was taking the opportunity, rarely
provided in the heat of litigation, to reflect succinctly upon fundamental
principles. He went one step further, however, in discussing the importance of
preserving constitutional rights in times of national fear and tragedy. On the
other hand, even in this serious case where the specific contours of due process
were ready for articulation, he refrained from finding that each or any of these
errors alone could support a reversal. Koubriti Dismissal, supra, 336 F. Supp.
2d 676. Where, as here, the lies are plain and unavoidable, the error is clearly
visible. What is easy to forget in a less obvious case, however, is how stricter
adherence to the process gives everyone a better opportunity at getting as close
as possible to a just outcome, regardless of whether the falsehoods can be
In the push and pull of zealous advocacy, it is easy for some
prosecutors to forget that winning isn’t everything. The procedures and
standards that have been developed over the past two centuries and that have
survived the Rehnquist Court give us the best current possible opportunity to
reach a just outcome. In difficult cases some zealous prosecutors continue to
commit blatant violations of due process, which have already been held to be
reversible error. See Some Prosecutors Just Don’t Get It: Improper Cross and
Vouching: RICO Report, The Champion (Nov. 2004). Yet it is well known that
misconduct is the source of the majority of the wrongful convictions of actually
innocent people. See Innocent Imprisoned Committee Update: The Truth May Set You
Free, The Champion (Jan./Feb. 1995), at 30; see generally William C. Thomson
& Michelle Nethercott, Forensics: The Challenge of Forensics Evidence, The
Champion (Sept./Oct. 2004), at 50 n.1 (discussing the role of pro-prosecution
scientific misconduct in obtaining wrongful convictions); Limitations on the
Prosecution’s Ability to Make Inconsistent Arguments in Successive Cases: RICO
Report, The Champion (Dec. 1997), at 40 (citing, e.g., Miller v. Pate, 386 U.S.
1 (1967); United States v. Andrews, 824 F. Supp. 1273 (N.D. Ill. 1993); Tyson v.
Indiana, 1993 Ind. Ct. App. LEXIS 926 (Aug. 6, 1993); United States v. Tashjian,
No. CR-88-124(-PAR (C.D. Cal. 1988); Wang v. Reno, 837 F. Supp. 1506 (N.D.
Cal. 1993)). Prosecutorial corner-cutting ultimately amounts to a reckless
disregard for the proper outcome.
Who is to blame for
this travesty? The front-line troops, analysts and prosecutors clearly must take
responsibility for their roles in the process. But what responsibility rests at
the doors of higher-ups?
In the Detroit case, AUSA Convertino undoubtedly
must shoulder much responsibility. At the same time, high-ranking members of the
DOJ were involved in every facet of the case. In fact, Attorney General John
Ashcroft and his senior staff were looking for, and speaking publicly about,
connections between this case and the September 11 attacks before AUSA
Convertino was willing to say he had any evidence connecting Koubriti, Hannan
and Ali-Haimoud to the events (and before Elmardoudi was even a defendant). See
Danny Hakim & Eric Lichtblau, After Convictions, the Undoing of a U.S.
Terror Prosecution, N.Y. Times, Oct. 7, 2004, at A26.
General Ashcroft even had to be publicly reprimanded by Judge Rosen for making
baseless statements about such fabricated connections to the press, violating a
gag order. See id.; Koubriti Gag Order, 305 F. Supp. 2d 723.
questions remain as to who all was directly or indirectly responsible and who
pressured or influenced Convertino to act in the way he did, even if he already
had a zealous and intense predisposition. Unfortunately, the question will
largely go unanswered. Veteran AUSA Keith Corbett “bristled at Washington’s
Content and comments expressed here are the opinions of Care2 users and not necessarily that of Care2.com or its affiliates.
Columbia, MO, USA
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