Are the Ted Stevens prosecutors in line to get a taste of their medicine?
As we’ve reported, six federal prosecutors from the Stevens case — members of DOJ’s Public Integrity unit, including its head, William Welch — are now being investigated for knowingly withholding evidence, a potential criminal act.
Prosecutions for this offense — known as a Brady violation — are exceedingly rare. But it turns out that in 2006, an Assistant US Attorney was tried on the charge — and acquitted amid allegations that his prosecution was over-zealous. In fact, the prosecutors who argued the case against the AUSA were with — you guessed it — the Public Integrity unit. And for part of that time, they were supervised by Welch himself. (For more on the Stevens Six, go here.)
In a nutshell, here’s what happened:
Richard Convertino was a rising star in the US Attorney’s office in Detroit, when he began prosecuting a high-profile terrorism case just a week after the September 11, 2001 terror attacks. In 2003, two of the four defendants, Middle-Eastern immigrants living in the Detroit area, were convicted of providing material support to terrorists.
But the case soon unraveled amid charges that Convertino had intentionally withheld evidence. In 2004, the convictions were thrown out. Two years later, Convertino was indicted.
His subsequent trial centered on a a sketch that had been seized from the Detroit apartment of the defendants in the original terrorism case. Convertino and his team had said it was a terrorist casing sketch of a military hospital in Jordan. The defense had countered that the sketch was a mere doodle with no relevance. They had asked to see photos of the hospital to compare it with the sketch, but the prosecution had said none existed.
In the new case against Convertino, the Public Integrity prosecutors alleged that this was a lie, concocted by Convertino. They claimed he had in his possession photos of the hospital, taken in 2002. In response, Convertino’s defense lawyers said that his failure to turn over the photos was an honest mistake. They said he had been overworked and had too few resources while trying the terrorism case, and that the photos were a minor piece of a mountain of evidence he was responsible for. In 2007, Convertino was acquitted.
The ironies here begin to mount:
First, Convertino was being tried for an overly aggressive approach to prosecution. But his trial raised questions as to whether the Public Integrity unit was itself overly aggressive in going after him. One former federal prosecutor told the Detroit News after Convertino was acquitted: “The claim was overzealousness by Convertino, but was the government itself overzealous in prosecuting Convertino?”
Then, of course, it’s surprising, to say the least, that having tried this high-profile case focused on a prosecutor withholding evidence, the Public Integrity unit would allow itself to be accused of the very same crime in prosecuting another case. Especially given that Welch, who took over the unit in 2006, was involved in both efforts.
In addition, it’s worth noting how incredibly rare Brady violation prosecutions are. (In court filings, Convertino wrote that the odds of a prosecutor being indicted for misconduct are one in 5,500 — less than that of him being struck by lightning.) And yet, defense lawyers say that prosecutors routinely withhold evidence, without being charged. And the PI unit has now been on both sides of two such cases in the last two years.
There’s also this. Convertino’s lawyers argued that he was overworked and given inadequate resources during the terrorism prosecution. That line echoes this paragraph from a recent New York Times story on the Stevens Six:
One specific issue is whether the department was at fault for failing to pick up on the struggles of a trial team of five principal lawyers that may have been overwhelmed, struggling in the face of tight deadlines and an aggressive defense team from Williams & Connolly, a law firm known for its combativeness, according to current and former Justice Department officials. Prosecutors were particularly hard-pressed because Mr. Stevens surprised them by asking for a speedy trial, rather than seeking a delay as expected.
The Six haven’t spoken publicly since the investigation was announced, but that claim to being “overwhelmed” and “hard-pressed”, which appears to come from them or their allies, likely offers a hint of the defense that they’ll use if ultimately charged.
Convertino himself did not immediately return a call for comment.