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In an extraordinary August filing in U.S. district court in Michigan on a motion to dismiss, senior federal prosecutors confessed to the trial judge that the high-profile Detroit “sleeper cell” terrorism convictions in June 2003 — the first and only post-Sept. 11, 2001, convictions by a jury of terrorism-related charges — were riddled with prosecutorial misconduct. The government moved to dismiss the terrorism counts and the defense moved for a new trial on the remaining counts; in a Sept. 2 opinion in U.S. v. Koubriti, the court granted both motions. The 60-page government memorandum on the motion is an unprecedented document. It was submitted after a hearing in which the judge made a finding that the government, in a trial conducted by lead prosecutor Richard Convertino, had suppressed two items of exculpatory evidence. The judge ordered the government to review other such documents. What turned up nine months later is one of the most unusual filings in DOJ’s history. The memorandum recites numerous instances in which the prosecutor concealed from the defendants exculpatory and impeachment evidence; repeatedly flouted the trial judge’s orders to disclose relevant materials to the court; misled the court, jury and defense as to the nature and complexion of critical evidence; allowed a key witness to give false and misleading testimony; and prejudiced the jury with a dishonest and inflammatory summation. The jury’s verdict had been hailed by the Bush administration as a major victory in the war on terrorism. The case began six days after the Sept. 11 attacks, when defendants Karim Koubriti, Ahmed Hannan and Farouk Ali-Haimoud were arrested in a Detroit apartment by an anti-terrorism task force. In the apartment the agents found false identity documents, audiotapes featuring fundamentalist Islamic teachings, a videotape of American tourist landmarks and two sketches that an FBI agent described as “casing materials” for a terrorist plot. This evidence, together with the testimony of a cooperating witness, Youseff Hmimssa, who claimed that the defendants were involved in terrorist activities, produced the verdicts. The case attracted substantial media coverage and generated intense public emotion, often fueled by the government. Although there was no direct evidence that the defendants committed terrorist acts or were tied to any specific terrorist organization, the government alleged in the indictment and in its opening argument to the jury, without any attempt to prove this at trial, that the defendants were “one arm of the greater global Jihadist organization known as al-Queda,” were a “‘sleeper’ operational combat cell for terrorist attacks within and outside the United States” and were “awaiting the call” to attack. Indeed, the indictment was leaked to the media before it had been returned by the grand jury. Attorney General John Ashcroft, in violation of the trial court’s order prohibiting prejudicial public disclosures, twice issued prohibited press briefings. Post-trial, the reliability of the evidence used to gain the convictions began to evaporate. After conducting the document review ordered by the judge, DOJ stated in the 60-page memorandum, that “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, and created a record filled with misleading inferences that such material did not exist.” While it is not uncommon for defense lawyers, judges or commentators to criticize a prosecutor for misconduct, it is almost unprecedented for a prosecutor to be rebuked so thoroughly, so harshly, and so convincingly by other prosecutors. The court, in its Sept. 2 order, wrote: “These failures by the prosecution were not sporadic or isolated � but were of such magnitude, and were so prevalent and pervasive as to constitute a pattern of conduct.” (Convertino has denied wrongdoing and filed suit against DOJ in February for violations of the Privacy Act and other federal claims.) But the 60-page memorandum raises broader questions that go beyond the conduct of one prosecutor. The misconduct, so exhaustively documented, while different in magnitude is not very different in kind from misconduct committed by government prosecutors in other cases, but which is rarely acknowledged by the government. For example, as arose in the Detroit case, it is generally recognized that prosecutors often fixate on a theory of guilt, shop for opinions consistent with their own and ignore contradictory evidence inconsistent with innocence; are often rebuked by courts for failing to disclose to the defense exculpatory and impeachment evidence; are notorious for using unreliable “snitches” to win convictions; often shape, polish and improve a witness’s testimony that may be at odds with the truth; commonly order agents not to take notes of witness interviews; and give summations that incite juries to states of fear and vengeance. To the extent that the war on terrorism offers opportunities for the government to act outside the Constitution, the Detroit terrorist case and its aftermath demonstrate that the government is capable of acting both irresponsibly and responsibly. As the trial judge remarked in formally dismissing the terrorist charges, the heinousness of the terrorists’ mission must not diminish core constitutional protections nor provide an incentive to some law enforcement officials to violate the law. The government’s confession of error in the Detroit case suggests that it recognizes the importance of those safeguards, and how they can so easily be undermined in the shadow of terrorism. Bennett L. Gershman is a professor of law at the Pace University School of Law, where he teaches constitutional law and criminal law and procedure. He is the author of “Prosecutorial Misconduct” ( West Group, 2d. ed., 1999). This piece was originally published in Recorder affiliate The National Law Journal.

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