CASE CLOSED … what really happened in the 2001 anthrax attacks?

* The withholding or false creation of evidence by police and prosecutors is a cancer on the American justice system which nobody seems to want to do anything about …Lew’s exciting novel A GOOD CONVICTION personalizes this issue in a dramatic and frightening fashion … it could happen to anybody

Posted by DXer on May 30, 2012

Letters to the Editor re: Trouble at the FBI crime lab by Spenser Hsu in the Washington Post 4/17/12 …

The Post series documenting problems with forensic analysis at the FBI’s crime lab, and the efforts of officials to conceal the findings, has certainly been eye-opening. One can understand mistakes; one can even understand ignoring sound scientific principles to establish meaningful procedures and protocols. One is hard-pressed, however, to understand why such things should be deliberately concealed from defendants, except for the notion that the people involved were more concerned with protecting agencies and prosecutors than in obtaining impartial justice…  Orin Hollander, Jamison, Pa.


LMW Comment … 

The withholding or false creation of evidence by police and prosecutors is a cancer on the American justice system which nobody seems to want to do anything about. Purposeful false conviction should be a prosecutable offense, and police and prosecutors who lie (as opposed to making a mistake) should go to jail.

But where are the prosecutors who have the courage to bring charges against their colleagues?

It surely seems that the FBI and the DOJ have withheld evidence in the case against Dr. Bruce Ivins. If so, those who did so and those who have covered up for them should face criminal charges of obstruction of justice.

Do you see parallels between this institution-protecting behavior by FBI and DOJ and the Catholic Church coverup of sexual abuse by priests? To me it is all part of the same pattern by which those in power seek to stay in power, the truth be damned.

I wrote a novel about prosecutor misconduct called

A Good Conviction,

in which a young man is convicted of a murder

by a New York City prosecutor who knew he was innocent.

It happens far more often than we would like to believe.


read more about A Good Conviction and my other novels at …

20 Responses to “* The withholding or false creation of evidence by police and prosecutors is a cancer on the American justice system which nobody seems to want to do anything about …Lew’s exciting novel A GOOD CONVICTION personalizes this issue in a dramatic and frightening fashion … it could happen to anybody”

  1. DXer said

    If the FBI withholds relevant scientific reports from GAO when the specific task for review is the scientific evidence relied upon, it doesn’t bode well for the issue of whether flawed forensics is kept from convicts generally.

    Here, none of the forensic evidence pointed to Dr. Ivins and so it is not so much an issue of flawed forensic evidence, but a mischaracterization of and selective disclosure of evidence. At the same time there were mistaken factual assertions made in support of the FBI’s speculative “Ivins Theory” (see, e.g., lyophilizer) all the exculpatory evidence was simply withheld from public review.

    Review of FBI crime lab’s flawed forensics kept from convicts, newspaper reports
    PrintBy John Simerman, | The Times-Picayune
    Follow on Twitter
    on April 17, 2012 at 7:00 AM

    Possibly flawed convictions based on bad forensic work were well known to federal officials since the 1990’s but never revealed to the convicts or their lawyers, only to local prosecutors, according to an investigation by The Washington Post. The report also claims Justice Department officials limited their review despite knowing of wider problems at the FBI crime lab.

  2. DXer said

    Here is the documentary evidence showing the FBI’s “Ivins Theory” — which was premised on the false and mistaken claim that Dr. Ivins time in the B3 was unexplained — was crock. Look at the Amerithrax Investigative Summary and you can see that the word “rabbits” is never mentioned.

    Special thanks go to the unflagging efforts and good faith of the USAMRIID FOIA personnel who doggedly responded to innumerable requests; Lew, the Harvard MBA and former head of a lab with B3 facilities who has taken the time out from traveling the world to upload the documents; and the supremely talented and confidence-inspiring graphic artist who made graphics that never ceased to thrill me.

    In the rush of events of the Spring and early Summer 2007, it is easy to drop the ball as happened with the AUSA marshalling the evidence in Amerithrax about how Dr. Ivins spent his time in the B3. At the same time, it takes a special stamina to pick up the ball back and run down the field with it in the face of BS PR spin from DOJ’s highest officials.

    Dr. Ivins and his skilled counsel explained that his work with the animals was why he was in the lab but they did not have access to the documents from years before — many of the documents were kept by others. Obtaining the documents under FOIA literally took years.

    And of course, the DOJ is on the record explaining that they will never give Congress the documents showing when they first learned that there were problems with the investigation.

    Additional documents, that are not yet uploaded, paint a picture that would cause you weep for Dr. Ivins and the unfairness that an Ivins Theory was not required to be supported by the evidence.

    1. In a Sept 23, 2011 letter to Senator Grassley, the DOJ says that Dr. Ivins made the dried powder in B5 using the lyophilizer even though the DOJ has proved he was in B3 tending to the rabbits, not B5 (the BL-2 lab), at the time the DOJ alleges he made the dried powder. THAT is the contradiction.
    Posted by Lew Weinstein on December 16, 2011

    2. AMERITHRAX prosecutors and investigators have never discussed what the newly released documents show about Dr. Ivins work with rabbits involved and those same documents were available to the FBI before Dr. Ivins’ killed himself.
    Posted by Lew Weinstein on October 14, 2011

    3. Document produced today to DXer discussing shipment of 52 rabbits week of September 24, 2001 for formaldehyde study
    Posted by Lew Weinstein on August 31, 2011

    4. The lyophilizer in Building 1425 was in Suite B5, not Suite B3 where Dr. Ivins was on the nights in question (where he was doing the study with the 52 rabbits)
    Posted by Lew Weinstein on November 11, 2011

    5. In an Oct 5, ’01 email among the materials provided by USAMRIID this week, Dr. Ivins explains the results 3 days after the challenge of rabbits in the formaldehyde experiment; the word “rabbits” has never passed the prosecutor’s lips
    Posted by Lew Weinstein on December 24, 2011

    6. In Advance Of The October 1, 2001 Rabbit Challenge, The 52 Rabbits Nowhere Mentioned By Prosecutors Needed To Be Moved Into The B3 Suite 7 Days Earlier (And Documents Establish That They Were)
    Posted by Lew Weinstein on January 13, 2012

    7. As Dr. Ivins often explained, conducting a rabbit study such as the one involving 52 rabbits in early October 2001 always depended on the availability of hot suite space.
    Posted by Lew Weinstein on November 1, 2011

    8. Handwritten notes produced by USAMRIID this week summarizing rabbit contract with Covance involving formaldehyde
    Posted by Lew Weinstein on December 24, 2011

    9. In response to Dr. Ivins’ October 5, 2001 email discussing the rabbit deaths over the last three days, the participants in the study that day discussed by email the implications for further study
    Posted by Lew Weinstein on January 4, 2012

    10. NOT FOR PUBLIC DISTRIBUTION: 10 days after the rabbits had been challenged on October 1, 2001, Dr. Ivins presented preliminary results from the Battelle study involving the 5 year old preps of rPA vaccine w/ and w/o formaldehyde.
    Posted by Lew Weinstein on December 24, 2011

    11. Under The Protocol Involving Rabbits and Formaldehyde Implemented in Late September 2001 and Early October 2001, Dr. Ivins Was Tasked With Monitoring The Animals After Challenge
    Posted by Lew Weinstein on January 1, 2012

    12. Hickory Dickory Doc: The mice ran up the clock and Dr. Ivins time in the BL-3 lab in late September 2001 but not as much as the rabbits did in early October 2001.
    Posted by Lew Weinstein on January 4, 2012

    13. Under The Mouse Protocol (As Under The Rabbit Protocol), Dr. Ivins Was Tasked With Taking Part In Immunization, Bleeding, Challenge And Observation Of The Animals
    Posted by Lew Weinstein on January 1, 2012

    14. Under The Protocol Involving Rabbits and Formaldehyde Relating To The Early October 2001 Challenge, The Rabbits Were To Be Euthanized By Injection Of Euthasol By Animal Tech Lab Anthony Bassett, Who Can Describe The Experiment
    Posted by Lew Weinstein on January 1, 2012

    15. Did AUSA Lieber and Agent Montooth understand Dr. Ivins’ trips to the “AR” from the hot suites as trips to a locked cabinet in “Animal Resources” to get the Ketamine and Euthasol needed to anesthesize and euthanize moribund mice and rabbits? See DEA (part of DOJ) Controlled Substance log.
    Posted by Lew Weinstein on December 11, 2011

    16. 12 rabbits then died on day 3 and 4 and more on day 5; Ivins time then spent the extra time on those nights; AUSA Rachel Lieber got her facts seriously wrong in the investigative summary; DOJ should have required citations to the record.
    Posted by Lew Weinstein on January 3, 2012

    17. Standard Operating Procedures for Animal Assessment and Monitoring: the beautiful Amerithrax AUSA did not appreciate that Dr. Ivins was tasked to do this the first week of October with 52 rabbits.
    Posted by Lew Weinstein on January 4, 2012

    18. In Week 9, the week (September 24th, 2001) the rabbits were shipped from Covance to USAMRIID Building 1425, Suite B3, how long did it take to bleed the 52 rabbits involved in the formaldehyde study?
    Posted by Lew Weinstein on January 4, 2012

    19, GAO: With respect to the rabbit formaldehyde study in late Sep and early Oct 2001 involving Bruce Ivins and Patricia Fellows — nowhere mentioned by AUSA Lieber in her investigative summary — did Dr. Fellows address the study in the deposition that the Department of Justice required to be shredded?
    Posted by Lew Weinstein on January 4, 2012

    20. GAO should obtain the very best contemporaneous documentation relating to Dr. Ivins specific activities with the guinea pigs, mice and rabbits on the nights that DOJ claimed, without evidence, that he was making a dried powder to mail.
    Posted by Lew Weinstein on January 6, 2012

    21. After Challenge On About Oct 1, 2001, One Of The Investigators On Rabbit/Formaldehyde Study Were Required To Observe The Control Rabbits For The First 7 Days After Challenge ; The AUSA and Investigators Never Mention The Rabbits
    Posted by Lew Weinstein on January 2, 2012

    22. FBI interview statement: If someone came in off hours it was to work on the animal experiments – this could take approximately two hours and was usually a one-person job.
    Posted by Lew Weinstein on January 1, 2012

    23. June 14, 2001 LACUS Subcommittee Meeting notice to consider Dr. Ivins’ proposal regarding formadehyde and rabbits.
    Posted by Lew Weinstein on January 2, 2012

    24. Before Issuing Its Report, GAO Should Seek To Obtain “Animal Room Environment Report” for B310 and B305 in Suite B3, Building 1425 for September – October (for the guinea pigs, mice and rabbits attended to by Dr. Ivins in the B3 under the various protocols implemented those months); Used for each animal room, the forms provide space to record animal observations, cage sanitation schedules, and more.
    Posted by Lew Weinstein on January 2, 2012

    25. Justice Department Is Said To Be Arguing Against Itself But AUSA Rachel Lieber Has Not Even Yet Addressed The Issue Of The Rabbits Or Produced The Pertinent Contemporaneous Documents Relating To Dr. Ivins’ Work With The Rabbits.
    Posted by Lew Weinstein on January 29, 2012

    26. Each of the 52 rabbits shipped the week of September 24, 2001 to USAMRIID Building 1425 to join Dr. Ivins in the Biolevel 3 lab had a unique identifying microchip.
    Posted by Lew Weinstein on December 26, 2011


    28. Like the rabbits shipped to USAMRIID Building 1425 the week of September 24th and acclimated to biolevel 3 for one week before being challenged, the mice similarly were housed in building 1425, not building 1412
    Posted by Lew Weinstein on December 26, 2011

    29. The Animal Technician Shot Out The Cage Cards For The Rabbit Experiment Prior to 2004; the NCOIC, Small Animal Section Was Responsible For Retaining The Used Cards
    Posted by Lew Weinstein on January 13, 2012

    30. By January 2003, the animal caretaker had thrown away the individual cage cards on the formaldehyde experiment with the 52 rabbits that Dr. Ivins was doing those nights in the lab in B3 in early October 2001
    Posted on November 1, 2011

    see also

    31. Of The 52 Rabbits In The Early October 2001 Formaldehyde Experiment, How Many Were Exsanguinated Pursuant To This Procedure? All Of Them?
    Posted by Lew Weinstein on January 13, 2012

    32. In an earlier experiment under the rabbit Protocol B00-03, the assistance of Dr. Ivins and two others was offered in connection with the bleeds over the two day period.
    Posted by Lew Weinstein on January 4, 2012

    33. Numerous USAMRIID Standard Operating Procedures (all mandatory) controlled the animal husbandry baseline services rendered the rabbits, guinea pigs and mice involved in Dr. Ivins’ experiments in Sep-Oct 2001
    Posted by Lew Weinstein on January 3, 2012

    34. Even in Later Protocols Involving Aerosol Challenges Conducted In Building 1412, the Rabbits Would Be Kept In Building 1425, Suite B3 Before And After Aerosol Challenge In 1412 (Where Monitoring Would Continue 21 Days)
    Posted by Lew Weinstein on December 30, 2011

    35. Dr. Ivins explained that “what’s acceptable as a [rabbit animal protocol is constantly changing]” ; thus it is important that the GAO rely on the rabbit formaldehyde protocol as executed and not earlier draft versions.
    Posted on December 9, 2011

    36. After rabbits are challenged on the hot side, as many as three autoclaves are needed just processing cages and other items from the hotside, and it takes time to disinfect, decon and re-set up a room
    Posted by Lew Weinstein on December 8, 2011

    37. produced today by USAMRIID to the blog under FOIA: June 21, 2001 “PROTOCOL TITLE: Effect of formaldehyde on the potency stability of a candidate human anthrax vaccine in rabbits”
    Posted by Lew Weinstein on November 17, 2011

    38. In a rabbit protocol provided by USAMRIID today, there is familiar discussion of drugs to be administered to the rabbits – for the Sept/Oct 2001 period, is there a contemporaneous log relating to the administration of drugs such as there is in a hospital?
    Posted by Lew Weinstein on November 15, 2011

    39. The scientist who made the large amount of virulent Ames that is missing, who was thanked by the former Zawahiri associate for providing technical assistance re the Ames, is the person who could explain about the rabbits ; but she’s not talking.
    Posted by Lew Weinstein on November 9, 2011

    40. Bruce Ivins’ co-authors can explain the rabbit and other animal protocols that applied to the subcutaneous challenges in B3 in Building 1425 conducted in September and October 2001.
    Posted by Lew Weinstein on November 9, 2011

    41. Dr. Ivins preferred a parenteral (subcutaneous) challenge because you could fit 60 rabbits in one room whereas an aerosol challenge would require 4 rooms (1 for animals, 2 hood lines, and 1 spore and bacterial plating)
    Posted by Lew Weinstein on October 31, 2011

    42. It would take 1 hour and 50 minutes to autoclave animal pans and cages (90 minute steam cycle and 20 minute drying cycle)
    Posted by Lew Weinstein on October 31, 2011

  3. DXer said

    I totally understand the DOJ’s point.

    Mole helps Rep. Issa whack Justice Dept.
    By Jordy Yager – 06/07/12 05:00 AM ET

    Such issues require a careful balancing.

    The balance always lies in favor of the protection of the lives of innocents — which will be highly fact-specific.

    Here, the anthrax threat presents, potentially, an existential threat. The correct balancing and analysis is thus especially important.

    The day that Linked-In reports that 6.4 million passwords may have been compromised is the day that everyone should proceed in a way that withstands public scrutiny.

    Does Amerithrax? Did the Marc Rich pardon? If you think it did, then you don’t know Jack.

  4. richard rowley said

    Here’s an idea I had recently that touches on this (the problem of evidence that disappears, is never acknowledged by the prosecution etc.).
    Proposal: there should be an entity (organizational entity) completely separate from DoJ/DoTreasury/[any other Department that has a law enforcement component].
    I picked HHS (Health and Human Services) but it doesn’t HAVE to be that department.

    The pertinent sub-organization, called something like the Agency of Forensic Validity, would receive CERTIFIED ‘evidence’ (probably in its rawest form, like a palm-print taken from a crime scene, but not yet matched to anyone),
    and by ‘certified’ I mean something a law enforcement type has come up with, declared valid evidence and whose chain-of-custody can be (and MUST be) described at the time it is submitted to the sub-organization. ‘Evidence’ not so submitted would have no admissibility whatsoever.

    The purpose of the sub-organization is to segregate the processing/handling etc. of the physical evidence (and possibly other types of evidence) from the law enforcement and prosecutorial organization(s) as early in the process as possible (this is eventually done ALREADY, via entry of ‘people’s exhibit #1/#2/#3 etc, but done so late in the process that it’s subject to abuse by the entity/ies that has/have custody of the evidence).

    The sub-organization would have the obligation to notify the defense what the evidence is against the defendant, taking away SOME of the discretion the prosecutor has in terms of ‘discovery’, the very thing that is open to so much abuse.

    • DXer said

      Chain-of-custody procedures are fully adequate. The treatise by Dr. Budowie et al. explain the principles in the context of microbial forensics. For example, it was improper for Dr. Ivins to use white-out on the RMR 1029 inventory sheet and change Bldg 1412 to 1425.

      Here, it is a simple matter of GAO walking AUSA Lieber through the rabbit documents and having her explain why there is no mention of them in her Amerithrax Summary.

      Similarly, the report(s) by Dr. Bartick on photocopier toner exist and need simply be produced and disclosed. etc.

      No evidence has disappeared.

      Moreover, it is a simple matter for GAO to obtain the DOJ paralegal’s annotated database and cause all documents not exempt under FOIA to be uploaded. Much will be subject to withholding on privacy and other grounds.

      GAO needs to leverage the authority of Congressional committee members that probably are getting tired of being viewed as potted plants.

  5. Lew Weinstein said

    The headline refers to the American criminal justice system, where there are many examples of “created evidence.” (Think jailhouse snitch.)

    The reference in the post to the FBI/DOJ talks about withheld evidence, of which the Amerithrax case is replete.

    There is nothing to modify in my post.

  6. Lew Weinstein said

    I’m not concerned with Walmart. I and this blog are concerned with Amerithrax. It is specious to excuse the FBI/DOJ for withholding information exculpable to Dr. Ivins while attempting to convince the American public that he was the sole perpetrator of the 2001 anthrax attacks.

    It is clear the FBI/DOJ are hiding something – something quite serious – and I believe they should be held accountable.

    What they are doing is not “zealous advocacy.” It is not “good faith.” The hiding of evidence in this case, as repeatedly made clear on this blog by the very person who gives the FBI such benefit of what can no longer be considered doubt is a disgrace, and it is a further disgrace if no one in authority will call them out on it.

    Except perhaps the GAO, we can only hope.

    • DXer said

      “I and this blog are concerned with Amerithrax.”

      Can you provide a single example of “false creation of evidence by police and prosecutors” in connection with Amerithrax? I can’t. If you can’t, given that the headline might be construed as relating to Amerithrax and not to some unspecified case, you should conform and limit the headline to the issue of withholding documents. I zealously press for the production of documents because I know for a fact that they have not been produced — having read all the documents produced. I say documents have been culled from production because I experienced the review and culling of Dr. Ivins’ emails over a period of two years. I say the forensics on the photocopier, ink, paper etc. have not been produced — have been withheld — because they have been. etc.

      But similarly, having read all the documents produced, I see no instance at all — not a single one — of “the false creation of evidence by police and prosecutors.” Do I disagree that the evidence supports the conclusions urged? No. Do I see fanciful and contrived reasoning? Incorrect (false) narrative finely spun? Absolutely. But do I see “false creation of evidence by police and prosecutors”? No. I just see a bunch of civil servants making a good faith effort to solve a difficult mystery and being mistaken in their analysis. Life would be mighty dull if everyone reached the same conclusion in looking at a complex set of facts — with only some facts and experience held in common.

      But that is radically different than the “false creation of evidence by police and prosecutors.” That sort of phrasing applies to the case years ago in New York State when some troopers planted some fingerprints on a gas can. Or it exists in the case of a corrupt city narcotics unit that plants a bag of cocaine. Those instances clearly constitute criminal conduct.

      So you and I would be on the same page if you tweaked the headline by omitting the phrase “or false creation of evidence”. (And if you do this comment would no longer be applicable and be deleted). Otherwise, hyperbole not factually grounded merely undermines the advocacy among those FBI agents, prosecutors, and policy-makers in Congress (like Senator Leahy) who could agree and SEE that additional relevant and material documents should be produced. They OTOH likelly see no example the “false creation of evidence” — and you have pointed to none. Our difference may be just one of semantics. Imputation of a crime of obstruction of justice should never be raised without being able to cite specific example — and to link to the evidence that establishes it. In a case involving al-Marabh, the prosecutor in fact was indicted for obstruction of justice. The scientist researching anthrax at a public library and its use to contaminate water supply had stayed in that apartment with the young men at this apartment associated with Al-Marabh. The young men worked at a chicken farm.

      In that case, as I recall, there was a drawing of a map and the expert had told him that it in fact was not a drawing of an airport in Turkey as he alleged. But he withheld that info. I contacted the indicted former AUSA about Amerithrax because al-Marabh was in charge of transporting money to players, both in Afghanistan and in North America. There was a connection to Canada which in fact is very important to understanding Amerithrax. The prosecutor’s view of things was that DOJ HQ wanted to keep some things secret and controlled from DC. Whereas the local AUSA wanted to make the cell he was prosecuting a bigger deal, HQ wanted to minimize it. DC sent someone from Washington to observe in real-time and take notes — and then when the conviction was overturned for prosecutorial misconduct the AUSA was indicted.

      The chicken farm was owned by a good friend of a correspondent of mine, Mitzi Perdue, who followed these issues. That prosecution, without more, draws into question your “nobody seems to want to do anything about” — as do the hundreds of comments I linked in response to the Washington Post recent front page story and related stories.

      Your featured posts are routinely very strong and powerful — and that’s because your headlines and commentary conform to linked documentary evidence. And when they don’t you tweak them. I didn’t ask this time because at some point you should have an unfettered right to make your case. So what’s your case? Why do you say there has been criminal conduct and the false creation of evidence? Can you point to a single instance of “false creation of evidence by police and prosecutors”? I can’t. And the surest way to shoot yourself in the foot in advocacy is to unfairly impugn the integrity of the civil servant who genuinely believed that Dr. Ivins was guilty and in good faith was advancing the theory and aggressively pressing the target.

      My own understanding of things — right or wrong — is that AUSA Lieber was forbidden by a supervisor from going to interview Al-Timimi in jail because a deal had been cut. To her credit she went anyway. For her trouble, she was reprimanded. And at the same time there was huge turmoil in the office involving a lawyer who was in charge of handing out case assignments. The misconduct alleged had some close parallels with an Ivins Theory but involved conduct in the workplace rather than in a sex shop on some sidestreet in Georgetown. And the best way I can think of persuading AUSA Lieber that Dr. Ayman recruited an acquaintance of his to mail the letters is to have her get her head around the fact that I know more than she and the hardworking Agents who, relatively speaking, were brand spanking new to the matter. The grievous errors in analysis were made BEFORE they even first started studying the matter. Rather than being prosecuted for obstruction of justice, she should be commended to sticking to her guns and at least go visit Ali Al-Timimi in jail and better understand an alternative to an Ivins Theory.

      • DXer said

        Note that the grounds for the indictment for obstruction of justice of the prosecutor and agent in this 2006 case was withholding potentially exculpatory documents, not the “false creation of evidence.”

        Thus, when Congress charges the Government of Accountability Office with obtaining and reviewing the relevant documents from the Department of Justice relating to Amerithrax, prosecutors and agents have plenty of reason to go back to their file and make sure that they have made an exhaustive production (even though I dismiss and don’t credit any suggestion that there was any “false creation of evidence”). The evidence presently supports the conclusion that there has been a continued failure to disclose evidence that is relevant and material to the question of Dr. Ivins’ responsibility for the mailing of letters containing anthrax. Even though ordinarily there are channels and everyone is very busy with new and pressing matters, it behooves all prosecutors and agents to make sure that their own documents have been fully produced. The boss may say the buck stops with him but as a practical matter in any organization sh** tends to roll downhill — and sometimes it comes fast and furious. Just ask Attorney General Holder.

        Prosecutor, Agent Indicted in Detroit – Misconduct Is Alleged in Terrorism Case
        The Washington Post ^ | March 30, 2006 | Dan Eggen

        Page A03

        A former federal prosecutor and a State Department security officer were indicted yesterday on charges that they lied during a bungled terrorism trial in Detroit and then sought to cover up their deceptions once the case began to fall apart.

        Former assistant U.S. attorney Richard G. Convertino, 45, and State Department special agent Harry R. Smith III, 49, were charged with conspiracy, obstruction of justice and making false statements in connection with the 2003 prosecution, according to an indictment handed up by a federal grand jury in Detroit. …

        Convertino led the prosecution of Karim Koubriti and three other North African immigrants, who were alleged to be part of a “sleeper operational combat cell.” The government gained three convictions — including two on terrorism charges — but they were dismissed in 2004 after the Justice Department announced it had uncovered serious prosecutorial misconduct.

        A report by a special Justice Department attorney assigned to review the case found that the prosecution had failed to turn over dozens of pieces of evidence to the defense. The “pattern of mistakes and oversights,” along with possible misconduct, was so egregious that the government had little choice but to withdraw its case, his report said.

      • DXer said

        The photos the prosecutor failed to produce — which served as the grounds for the indictment for obstruction of justice — were of a Jordanian hospital. In the case of Amerithrax, the priority is production of relevant documents so as to be sure that the threat of an attack using aerosolized anthrax is reduced.

        Richard Convertino Acquitted of Rigging Trial

        The Detroit Free Press reported that former federal prosecutor Richard Convertino, lead Assistant U.S. Attorney in the Detroit Sleeper Cell prosecutions of Karim Koubriti and Abdel-Ilah Elmardoudi, was aquitted of rigging that trial.



        By: Joe Swickard and Christina Hall

        In a case born from the wreckage of the first terrorism trial after the 9/11 attacks, a Detroit federal court jury needed less than a day to acquit former prosecutor Richard Convertino and federal agent Ray Smith on Wednesday of subverting justice in that 2003 trial.

        The panel cleared Convertino and Smith of keeping photographs from defense attorneys that might have undermined their 2003 prosecution and convictions of alleged sleeper cell terrorists in Detroit. “Defendant Convertino, not guilty; Defendant Smith, not guilty,” the jury foreman said to charges of conspiracy, obstruction of justice and making a false declaration to a court.

        In 2003, defense attorneys wanted photos of a Jordanian hospital in hopes of proving it did not match a crude drawing Convertino argued was a terrorist planning sketch. Convertino said there were none, but photos of the hospital were later found.

        In 2006, a federal grand jury charged that Convertino deliberately hid the photos. His defense team said he overlooked them in a mountain of evidence. In 2003, U.S. Attorney John Ashcroft personally spoke of the efforts in Detroit, and Convertino was later lauded for showing that the U.S. justice system could thwart terrorists.

        The convictions were thrown out in 2004 because of alleged prosecutorial misconduct, but a measure of vindication was handed to Convertino on Wednesday with the rapid-fire acquittal.

        With stifled gasps from the gallery, Convertino and Smith hugged their wives as their lawyers, William Sullivan and Thomas Cranmer, shook hands and hugged supporters who had filled U.S. District Judge Arthur Tarnow’s courtroom daily.

        Ordeal not over yet

        “This was a politically motivated prosecution that never should have been brought,” said Convertino, a highly honored former federal prosecutor who filed a whistle-blower suit against the Justice Department and former colleagues in Detroit. That suit is pending.

        Convertino, whose lawsuit alleges he was punished for decrying the lack of resources in the terrorism trial, said: “This was a four-year investigation, and they went all over the world. I wish all those resources” had been available for the 2003 case.

        Sullivan and Cranmer argued to jurors that Convertino and Smith were heroes.

        Convertino “acted to save lives, and in my opinion, it might have been your own,” Sullivan told jurors.

        Daniel Schwager, a prosecutor from the Justice Department’s public integrity section, was brief in his reaction to the verdict: “This was important to the system, and we respect the jury’s verdict.”

        The charges against Convertino and Smith were felonies that carried a maximum penalty of 20 years in prison and $750,000 in fines upon conviction.

        Convertino is still under indictment for obstruction of justice, charged with lying to a judge in a sentencing hearing by misrepresenting a defendant’s cooperation to get a vastly reduced sentence. That charge, separated from this trial, is still pending.

        Trial full of complexities

        The prosecution’s case may have gone off the rails with the first witness, Samir Jarandogha, a Jordanian security liaison at the U.S. Embassy in Jordan who admitted that he lied to Tarnow the day before in a pretrial hearing. He falsely claimed a Jordanian lawyer advised him not to meet with defense lawyers.

        Cranmer and Sullivan pounced, calling it supreme irony for the federal government to open with a confessed liar.

        At times, the trial seemed a topsy-turvy world, with prosecutors going after a former prosecution team. Much of the case was spent on the judicial postmortem of the 2003 terrorism trial – dissecting the prosecution and defense tactics, evidence and testimony.

        And more dizzying layers were piled on. Several prosecution witnesses lauded the skills, energy and dedication Smith and Convertino showed.

        Yet another prosecution witness, a terrorism expert appearing under a court-approved pseudonym, was labeled a hostile witness at the request of prosecutors who called him to the stand and put him through a rugged cross-examination. The witness said his faith in the 2003 case was stronger than ever.

        At the center of the current case was the trial of Karim Koubriti and three associates, Farouk Ali-Haimoud, Ahmed Hannan and Abdel-Ilah Elmardoudi.

        A week after 9/11, federal agents went to a flat in southwest Detroit looking for Nabil Almarabh, who was No. 27 on the nation’s terrorist watch list. Almarabh wasn’t there, but agents found a raft of phony identification material, a videotape and a day planner with a series of crude drawings.

        The drawings were seen as casing sketches of potential terrorism targets in Turkey and Jordan.

        But, according to e-mails, the 2003 prosecution team worried about claims that the pictures were drawn by a mentally ill man with delusions of military glory who had committed suicide.

        At the trial, agents testified the drawings matched the hospital, but that the government had no photos of the hospital.

        Smith, an embassy security agent in Jordan, testified that he helicoptered over the hospital with Jordanian police, but didn’t take pictures because that would cause an international incident.

        That trial ended with Elmardoudi and Koubriti convicted of the terrorism charges and Hannan of document fraud. Ali-Haimoud was acquitted.

        The verdicts were hailed as the first post-9/11 courtroom victories over terrorists, but allegations swirled that Convertino cheated by hiding evidence. In 2006, Convertino and Smith were indicted. E-mails were found indicating that photos were taken of the hospital.

        During this trial, Convertino’s lawyers argued the photos were overlooked because he was overwhelmed by reams of evidence while getting little help – but lots of hectoring – from Washington. The photos had little value anyway, he said.

        Cranmer said Smith would be the last person to enlist in a crooked scheme.

  7. DXer said

    Fortunately, in Amerithrax, there is no evidence that any evidence has been created and no grounds for criminal obstruction of justice charges. The good faith of everyone can be presumed. A litigator is charged with zealous advocacy under the ethical rules — just as the defense counsel is. If someone disagrees with an urged interpretation, in our democratic society it can be pointed out. Even in the case of AUSA Kohl’s historic misstep in the unrelated Blackwater case, in which the murder indictments were dismissed, the system worked and the Fifth Amendment right against self-incrimination was defended by zealous defense counsel Tom Connolly.

    But now it is time for the FBI Director or the GAO to show that the system does in fact work.

    • DXer said

      Wal-Mart’s Mexico probe could lead to departures at the top

      (Reuters) – Allegations that Wal-Mart Stores Inc stymied an internal investigation into extensive bribery at its Mexican subsidiary is likely to lead to years of regulatory scrutiny and could eventually cost some top executives their jobs, analysts said.


      If there was enforcement of the Foreign Corrupt Practices Act in connection with the sale of weapons, there would be a lot fewer wars and a lot fewer young men needlessly dying in pointless wars and occupations.

      I vaguely recall that Hllary Clinton served on the Board of Directors and I’m sure, while recusing herself from discussions, privately may want the top management to act swiftly and preserve all evidence of the massive violation of FCPA that occurred. The Department of Justice’s actions will ensure that the citizens of our great country can remain proud of the values we are exporting to other countries.

      But Justice starts at the United States Department of Justice. We need to continue to have a strong and robust FBI and Department of Justice to handle the vast responsibilities that the Department has to handle. Even while the public urges a system designed to avoid guilty parties going free (by unjustly pinning a crime on the wrong person or persons), the public should support the Department in its monumentally important and varied mission.

      • DXer said

        The implication of Walmart’s position may be that the Department of Justice needs to act quickly so as to avoid running of the statute of limitations.

        Law professors expert on FCPA can address whether the running of the statute of limitations will have been tolled under the circumstances.

        In Amerithrax, of course, even when you don’t even interview the head of Al Qaeda’s anthrax lab until nearly a year after he is captured and you don’t obtain the records showing that Bruce Ivins transferred virulent Ames to a former Zawahiri associate until 2005, statute of limitation issues never arise given the deaths that occurred.

        Wal-Mart responds to report saying it squashed Mexico bribery probe,0,4434719.story

        In the Mexican bribery case, whistle-blower and former executive Sergio Cicero Zapata said that Wal-Mart’s Bentonville, Ark., headquarters nixed a full-fledged investigation into the alleged multimillion-dollar scheme and sat on Zapata’s evidence rather than report it to authorities.

        Wal-Mart this weekend said that it “will not tolerate noncompliance” with U.S. anti-bribery laws such as the Foreign Corrupt Practices Act, saying that it began investigating its internal observance of such rules last fall.

        The probe, which Wal-Mart said involves voluntary meetings with the U.S. Department of Justice and the Securities and Exchange Commission as well as public filings, is still ongoing.

        Wal-Mart also said that much of the bribery described by the New York Times was “more than six years old. The company said it has since “taken a number of actions in Mexico” to be more vigilant against corruption.

        “If these allegations are true, it is not a reflection of who we are or what we stand for,” according to the company.

        But Wal-Mart still doesn’t know exactly what happened, the company admitted.

        “We don’t want to speculate or weave stories from incomplete inquiries and limited recollections, as others might do,” it said. “We are committed to getting to the bottom of this matter.”

        Watch Wal-Mart’s Vice President of Corporate Communications, David Tovar, discuss the scandal below.

        • DXer said

          Compare Walmart’s statement below to the failure by the publishers of the EBAP report in Amerithrax to retract their reliance on the key witness who in 2009 had published a book explaining that in 2000 and 2001 her actions were controlled by an alien who had implanted a chip in her butt and gave her instructions at night.

          Walmart Statement in Response to Recent New York Times Article About Compliance with the U.S. Foreign Corrupt Practices Act – PR News
          Publication Date 22 April 2012

          In Amerithrax, the witness, who was Dr. Ivins counselor briefly in July 2000, would have emergency exorcisms after meeting with the patients in her part-time counseling gig. She reports that she would try to rid herself of the murderous astral entities attached to her patients. After 911, each night, she would fly to WTC ground zero or to Afghanistan to psychically reconstruct the bodies. When she went to Afghanistan, she would be chased by nasty astral entities following her home — protecting herself with a vortex of light.

          The EBAP panel members, after issuance of the report, were all advised of the 2009 book but none acted to withdraw it. These psychiatrists who played such a central role in advising the FBI never blinked. Dr. Schouten and Dr. Saathoff continued to urge Dr. Ivins’ likely guilt based on their psychological profile of him.

          It is easy to complain when someone doesn’t correct their mistakes such as has almost uniformly been the case in Amerithrax. About the lone exception of the civil division in connection with the location of the lyophilizer. The FBI and Dr. Majidi allowed the NAS to conduct a review and then the documents about overseas testings were withheld until after the report was due.

          It is harder to complain when the actor at least belatedly corrects the missteps.

          With the person who did the bribery being the chief whistleblower, only the most radical measures will suffice in the case of Walmart’s troubles.

          In the case of Amerithrax, only the proactive steps taken on the FBI’s own initiative will ever serve to set things back on track. If the FBI does not know the bad guys are still out there, then the country is at grave peril.

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