Thursday, October 11, 2007
The prosecution of former Assistant U.S. Attorney Richard Convertino and a former State Department Security Service officer opened in Detroit with the kind of start the government certainly did not want. Convertino was indicted on conspiracy, obstruction, and false declaration charges (available below) in 2006 related to his conduct of the first post-September 11 terrorism trial, United States v. Koubriti, involving four North Africans accused of being involved in a terrorist plot to blow up a hospital in Jordan. After the conviction of three of the defendants, the government later confessed error because Convertino allegedly failed to turn over exculpatory evidence to the defendants that purportedly undermined the government's theory of the case. The undisclosed evidence involved photographs the government had taken of the hospital, which the prosecutors in the case denied existed in response to defense discovery requests. The issue in this prosecution is unusual, if not unique, because it involves a determination whether withholding Brady material -- exculpatory evidence -- rises to the level of obstruction of justice. The defense asserts that it was not material and therefore no obligation to disclose existed, and that the subsequent dismissal of the convictions was in retaliation for Convertino testifying before a Senate committee about problems in terrorism prosecutions.
The government's case began on a down note with the disclosure that its intended first witness had lied at a hearing the day before. The witness, a Jordanian official who was to testify about the pictures being taken, stated at the hearing that he had refused to speak with defense counsel before trial on the advice of his lawyer in Jordan. Right before opening statements, however, the federal prosecutor revealed that the witness had not spoken with his lawyer, and therefore the statement was not truthful. The issue at the hearing was whether the government was trying to interfere with the defense trial preparation by having the witness refuse to be interviewed. It's still unclear why the witness did not cooperate, and he has been bumped back on the witness list. Needless to say, the defense lawyers have seized on the government's admission, noting the irony of their lack of access to evidence and a lying witness in a case about those very issues.
I am not aware of any obstruction cases involving a prosecutor based only on a Brady violation, although the case of Durham County District Attorney Mike Nifong in the Duke lacrosse team case probably comes the closest. The exculpatory nature of the DNA evidence withheld in that case was obvious, while the photographs from the Koubriti case don't seem to leap off the page as clearly favorable to the defendants. The prosecution raises interesting issues about whether the failure to turn over disputed evidence can rise to the level of an obstruction of justice, and whether it is proper to have a jury effectively decide whether evidence is subject to the Brady disclosure requirement as a precursor to determining whether the defendants violated the law. A Detroit News article (here) discusses the beginning of the trial. (ph)