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WASHINGTON (AP) -- In a dramatic reversal, the Justice Department acknowledges
its original prosecution of a suspected terror cell in Detroit was filled with a
"pattern of mistakes and oversights" that warrant the dismissal of the
convictions.
In a 60-page memo that harshly criticizes its own prosecutors' work, the
department told U.S. District Judge Gerald Rosen on Tuesday night it supports
the Detroit defendants' request for a new trial and would no longer pursue
terrorism charges against them. The defendants at most would only face fraud
charges at a new trial.
The Justice Department is "concurring in the defendants' motions for a new
trial" and asks the court to dismiss the first count of the original indictment
charging the defendants with material support of terrorism, the government's
filing said.
The reversal comes during the buildup to President Bush's nomination acceptance
speech at the Republican National Convention, where he and his allies have been
touting their success in the war on terror.
The department's decision came after a monthslong internal investigation
uncovered several pieces of evidence that prosecutors failed to turn over to
defense lawyers before the trial last year. The probe exposed deep differences
within the government over the course of the case and the quality of the
prosecution's evidence.
'Extremely grateful' defense team
The internal investigation of prosecutorial misconduct found enough problems
that there is "no reasonable prospect of winning," the government conceded,
drawing back from a case once hailed by the Bush administration as a major
victory in the war on terror.
"In its best light, the record would show that the prosecution committed a
pattern of mistakes and oversights that deprived the defendants of discoverable
evidence (including impeachment material) and created a record filled with
misleading inferences that such material did not exist," Justice told the court.
The decision was hailed by lawyers for the Detroit men who were convicted last
year.
"We're extremely grateful," William Swor, lawyer for defendant Abdel-Ilah
Elmardoudi, said Wednesday. "It's a major victory."
Swor said the dropping of the terrorism charges leaves the government with "a
garden-variety document case" against his client. "Our work is just beginning,"
he said.
The memo attached to Justice's filing was harshly critical of Assistant U.S.
Attorney Richard Convertino, the lead prosecutor in the case. It quotes
Convertino's colleague who worked on the case as saying he would never have
proceeded if he knew the problems uncovered by the internal investigation.
For instance, Justice alleged that Convertino was told about photos of a
Jordanian hospital that the alleged Detroit cell was accused of making
surveillance sketches of, but never introduced the photos at trial or told
defense lawyers. Instead, the prosecution elicited testimony from an FBI agent
suggesting there were no such photos.
"Misleading testimony was elicited that created the false impression that there
was initial consensus that the drawing depicted the Queen Alia Hospital and that
photos could not be taken due to diplomatic red tape," Justice conceded.
Convertino has been under investigation for months and filed a whistle-blower
lawsuit against Attorney General John Ashcroft earlier this year. In an
interview with the AP, Convertino accused Justice Department superiors of
thwarting his efforts to introduce some evidence against the defendants at
trial.
Convertino's lawyer, William Sullivan, declined comment Tuesday night, citing
the judge's gag order.
CIA officer questioned evidence
In the new court papers, the Justice Department also divulged testimony from a
recently retired CIA officer who directly called into question another of the
government's key conclusions at trial -- that the alleged Detroit terror cell
had made a surveillance sketch of a Turkish air base used by American fighter
jets.
The retired CIA officer, William McNair, told the Justice Department he told
Convertino during five to 10 conversations that CIA experts "did not believe the
sketch conveyed any useful information" and was probably created by "someone who
was not very well-trained."
The filing also noted that the government uncovered new evidence, recently
reported by the AP, that FBI agents in Las Vegas and Detroit disagreed over
whether a videotape found in the Detroit terror cell's apartment was
surveillance footage of American landmarks, as jurors were told.
And a Tunisian man who appeared in the videotape of landmarks in New York, Las
Vegas and California has told investigators the tape was amateur footage from a
university student trip, not surveillance as prosecutors claimed.
Memos obtained by the AP and reported last month show Justice supervisors in
Washington and Detroit bickered over numerous aspects of the case, with
Washington portraying the Detroit prosecution team as wayward.
Lawyers for the Detroit defendants have argued for months for a new trial,
accusing the prosecutors of withholding evidence that could have aided the
defense during the trial. Rosen ordered a formal review of the prosecution's
conduct and even was interviewed by the FBI.
In a June 2003 jury verdict hailed by the administration as the breakup of a
terror cell, Koubriti, 26, and Elmardoudi, 38, were convicted on terrorism and
fraud charges and Ahmed Hannan, 36, was convicted of fraud. A fourth defendant,
Farouk Ali-Haimoud, 24, was acquitted.
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