[News] Judge Reverses Convictions in Detroit 'Terrorism' Case

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Judge Reverses Convictions in Detroit 'Terrorism' Case

http://www.nytimes.com/2004/09/03/national/03terror.html
By DANNY HAKIM
Published: September 3, 2004

DETROIT, Sept. 2 - A federal judge threw out the terrorism convictions of 
two Arab immigrants on Thursday, undoing what the Justice Department once 
proclaimed was its first major courtroom victory in the war on terror.

The department itself requested the dismissal this week in an extraordinary 
filing that savaged its own legal strategy against what it had 
characterized as a sleeper cell plotting acts of terrorism.

The judge, Gerald E. Rosen, acceded to the government's request for a new 
trial only on document fraud charges, ending the terrorism case against the 
men, Abdel-Ilah Elmardoudi, 38, and Karim Koubriti, 26, both from Morocco.

Judge Rosen was sharply critical of the prosecution of the case, citing a 
pattern of misconduct, though he did not mention Richard G. Convertino, the 
former lead prosecutor.

"Although prosecutors and others entrusted with safeguarding us through the 
legal system clearly must be innovative and think outside the conventional 
envelope in enforcing the law and prosecuting terrorists, they must not act 
outside the Constitution," the judge said in his decision. 
"Unfortunately,'' he added, "that is precisely what has occurred in the 
course of this case."

While criticizing the government's handling of the case, Judge Rosen 
praised the prosecutors who recently took it over and moved to disown it.

Mr. Elmardoudi and Mr. Koubriti remain in custody and face a new trial on 
the fraud charges. A third Moroccan, Ahmed Hannan, 36, convicted of 
document fraud, was released this year to a halfway house on an electronic 
tether. A fourth man was acquitted last year.

Three of the men were picked up in a raid six days after the Sept. 11 
attacks. The group was eventually accused of forming a terrorist cell based 
in Detroit and collecting intelligence for terrorist plots.

But Judge Rosen said prosecutors developed early on a theory about what 
happened "and then simply ignored or avoided any evidence or information 
which contradicted or undermined that view."

The judge's comments echoed the Justice Department's sharp rebuke of Mr. 
Convertino, who was removed from the case late last year and is being 
investigated for possible misconduct. The department said in its filing 
that Mr. Convertino withheld a substantial amount of evidence from the 
court that undermined every critical aspect of his terrorism case.

Lawyers for Mr. Convertino, who is suing the department, have vigorously 
disputed that he knowingly withheld significant evidence and said that the 
department was retaliating against him for cooperating with a Congressional 
inquiry into the nation's antiterrorism strategy.

Judge Rosen said in his decision that "the prosecution materially misled 
the court, the jury and the defense as to the nature, character and 
complexion of critical evidence that provided important foundations for the 
prosecution's case."

Though the government's filing, and the judge, found fault overwhelmingly 
with Mr. Convertino, some observers saw other problems.

"The case fits into a broader pattern of the Ashcroft Justice Department 
overplaying its hand in terror cases and making broad allegations of terror 
without the evidence to back it up," said David Cole, a law professor at 
Georgetown University.

Judge Rosen, who was nominated to the federal court by the first President 
Bush, praised the prosecutor who led a nine-month post-trial review of the 
case, Craig S. Morford. Mr. Morford was dispatched from the federal 
prosecutor's office in Cleveland last year to lead the review, which was 
ordered by Judge Rosen after the government revealed evidence not disclosed 
before or during the trial. Last month, Mr. Morford was appointed the top 
federal attorney in Detroit after Jeffrey G. Collins, who led the office 
during the prosecution of the case, resigned.

"The position the government has now taken,'' Judge Rosen said, "confessing 
prosecutorial error and acquiescing in most of the relief sought by the 
defendants, is not only the legally and ethically correct decision, it is 
in the highest and best tradition of Department of Justice attorneys."


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