Internet Anthropologist Think Tank: Terrorism prosecutor now is defendant

Paul Egan / The Detroit News

More than three years after convictions in a high-profile Detroit terrorism case unraveled, the lead prosecutor goes on trial Tuesday, accused of lying to a jury and obstructing justice during the country's first courtroom attack on terrorism following the Sept. 11, 2001, attacks.

At a hearing Friday, a Justice Department official portrayed former Assistant U.S. Attorney Richard Convertino as a rogue who "wanted to play dirty" by exaggerating evidence and concealing weaknesses from the defense. Convertino's lawyers are expected to put the Justice Department on trial, saying it is retaliating because he told Congress that he had insufficient resources to fight terror.

More significantly, the trial could shine light on the way the Bush administration waged the war on terror immediately after the deadliest attack on American soil.

"There was certainly pressure after 2001 to bring cases -- that's a natural reaction," said Peter Henning, a law professor at Wayne State University Law School and a former federal prosecutor.

"The key issue at trial is whether Convertino has become a scapegoat. Is he being hung out to dry for what was an aggressive prosecution?" he said

The two terrorism-related convictions won by Convertino in the 2003 "sleeper cell" case were tossed out in 2004.

Trial of national interest

That trial, which involved immigrants from North Africa whose Detroit apartment contained daybook sketches, a videotape and Arabic language audiotapes deemed suspicious, had implications far beyond Detroit.

Then-U.S. Attorney General John Ashcroft praised the 2003 convictions. Earlier, Ashcroft had been rebuked by U.S. District Judge Gerald E. Rosen, after wrongly suggesting at a news conference that the Detroit defendants may have had knowledge of the Sept. 11 attacks.

Now, Convertino's trial, at which Rosen is among the possible witnesses, will also be watched nationally, experts say, partly because of its connection to the war on terror and partly because it is a rare instance of a prosecutor being criminally charged for the way he conducted a trial.

Convertino, 46, is to be tried before U.S. District Judge Arthur J. Tarnow along with former State Department security officer Harry Raymond Smith III, 50, who had been assigned to the U.S. Embassy in Amman, Jordan.

They are charged with conspiracy, obstruction of justice and making false declarations before a court.

The most serious charge, obstruction of justice, carries a maximum of 10 years in prison.

Accused of lying

The essence of the charges is that Convertino and Smith lied about the existence of photographs of the Queen Alia Military Hospital in Jordan, which they contended was a potential terrorist target represented in a "casing sketch" found inside the seized daybook.

They are accused of concealing the existence of photographs that did not match the sketch, and Convertino is accused of not providing the photographs to defense attorneys, as required.

"These photographs would have led to serious weakening of the testimony at the (Karim) Koubriti trial and that is exactly why this is a crime," Daniel Schwager, a trial attorney from the Justice Department in Washington, said at a pretrial hearing before Tarnow on Friday.

Convertino maintains the sketch did represent the hospital and that Karim Koubriti and Abdel Ilah Elmardoudi were properly convicted of supporting terrorism.

Convertino lawyer William Sullivan argues satellite photos of the hospital demonstrate the accuracy of the sketch and the photos were irrelevant because they were not shot from the proper perspective.

Yet the concerns raised as a result of the terror case have brought scrutiny to other Convertino prosecutions, in which defense lawyers have alleged Convertino showed a pattern of relying on testimony from witnesses who were either incarcerated or facing incarceration and who received significant cuts in their sentences, sometimes secretly. Convertino has denied wrongdoing.

Convertino is also charged with obstruction of justice for allegedly lying to a federal judge in a separate drug case. That charge is to be tried separately.

Prosecution overzealous?

Lawrence Dubin, a law professor at University of Detroit Mercy School of Law, said it will be interesting to learn whether the evidence shows Convertino was properly prosecuting people he believed were supporters of terrorism or whether he engaged in misconduct believing the ends justify the means.

"There is no question that 9/11 created a zealous effort on the part of federal law enforcement to deal with the inherent dangers of terrorism," Dubin said. "Now, looking back a number of years later, the question arises as to whether the response perhaps was overstated and whether some of the earlier prosecutions were conducted in an overzealous manner."

To some critics, the Justice Department's prosecution of Convertino is paradoxical.

"Here you have a Justice Department that has been willing to conduct illegal wiretaps and engage in torture in order to combat terrorism," said Detroit criminal lawyer Mark Kriger, who successfully defended former Macomb County Prosecutor Carl Marlinga against bribery allegations. "It certainly isn't a stretch to think that members of that same Justice Department would be willing to hide evidence that would be favorable to the accused.

"Yet it is that very same Justice Department that is now saying, 'We won't condone lawlessness,' when they've engaged in lawlessness."

The Bush administration has repeatedly denied condoning torture. Litigation continues over the National Security Agency's terrorist surveillance program, which has permitted the government to conduct wiretaps without obtaining court orders.

You can reach Paul Egan at (313) 222-2069 or pegan@detnews.com.