THE CIVIL CASE AGAINST THE JUSTICE DEPARTMENT IS FINALLY PROCEEDING.

 

A successful man is one who can lay a firm foundation with the bricks that others throw at him.
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New Developments  Unprecedented Charges  WHO IS RESPONSIBLE?  Summary of Terrorism Case  The Terrorism Case 
FEDERAL JUDGE GERALD ROSEN DID NOT EVEN HAVE AN EVIDENTIARY HEARING BEFORE OVERTURNING JURY TERRORISM CONVICTIONS!


Below is a copy of the formal complaint that Valerie Convertino filed with the 6th District Court of Appeals regarding Judge Rosen's judicial misconduct.

Read an article about the questionable and unethical actions of Judge Rosen during the terrorism case.


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AP Article on Judge Rosen.


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Office of the Clerk
United States Court of Appeals for the Sixth District
532 Potter Stewart U.S. Courthouse
100 E. 5th Street
Cincinnati, OH 45202-3988
513-564-7200

To the members of the Judicial Council of the Sixth Circuit,

This is a letter of complaint regarding the conduct of Federal Judge Gerald Rosen of the Eastern District of Michigan. In the recent terrorism case U.S. v. Karim Koubriti, for the reasons that will be outlined below, it is apparent that Judge Rosen “engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts.” This conduct was pervasive and invasive in nature, and directly resulted in Judge Rosen’s inability to maintain the impartiality so necessary to the successful balance of our legal system.

As recognized by the Federal Courts, “conduct prejudicial to the effective and expeditious administration of the business of the courts” encompasses a wide spectrum of potential violations. Not only does Judge Rosen’s conduct include “improperly engaging in discussions with lawyers, or parties to cases in the absence of representatives of opposing parties,” but Judge Rosen also engaged in “other abuses of judicial conduct” that will be identified.

It is understood that this complaint does not take the place of a motion for disqualification. I understand from reading the guidelines that this formal complaint will not be a review of Judge Rosen’s decision, even though it was a bad one, and that the 6th Circuit does not have the ability to change Judge Rosen’s rulings or decision through this complaint process.

But, since Federal Judges enjoy a lifetime appointment, and are not held accountable to the voting citizens of this country for any “bad faith” actions or decisions that they may make, any person who has legitimate complaints of judicial misconduct has no recourse but to file a formal complaint. The guidelines, however, make it very clear that any chance for an investigation of a complaint or for any action to be taken against a judge, are slim to none. For this reason, I believe that the Federal Judiciary has the greatest potential for abuse of power of any branch of our government. As if infallible, I cite Judge Rosen’s own words in a newspaper article about why he did not follow his own gag order: “Look, I know where the lines are.”

Despite that fact that few instances of judicial misconduct are investigated, and although I realize that you may chose not to investigate this case in particular, it is important for the 6th Circuit to realize that Judge Rosen of the Eastern District of Michigan has knowingly disregarded laws of judicial ethics and has written a decision which deliberately omitted critical facts of the case. These violations of ethical conduct and omissions have negatively impacted the outcome of an important terrorism case, have the potential to impact negatively any future terrorism sleeper cell cases that the government may bring, and have caused great harm to the former lead prosecutor of this case, my husband, AUSA Richard Convertino, and our family.

Please keep in mind that I am not an attorney and that I write this independent of my husband’s assistance. I have used the guidelines that the 6th Circuit provided me with, as well as The Code of Conduct for Federal Judges as a foundation for formulating my complaint.

THE DECISION

On August 31, 2004, after a nine month-long court ordered “file review” into the country’s first terrorism sleeper cell case after 9/11, the Department of Justice filed a response in agreement with a defense motion asking for the dismissal of the terrorism convictions and for the granting of a new trial. On September 2, 2004, without the benefit of a hearing or of communication with any member of the original prosecution team, Federal District Court Judge, Gerald Rosen accepted the government’s motion and granted the defendants a new trial.

My husband, AUSA Richard Convertino, was the lead prosecutor on the case until he was removed from the case in September, 2003 in retaliation for his testimony before the Senate Finance Committee. His attorney, William Sullivan, told Judge Rosen in early 2004 that he was going to file a motion to recognize that AUSA Convertino was a “party in interest.” Judge Rosen informed Mr. Sullivan that the motion would not be necessary, as he already recognized Convertino as a “party in interest.” This is important, since Judge Rosen engaged in ex-parte meetings unknown to Convertino and his attorney, and refused to allow any member of the original trial team, including Convertino, an opportunity to dispute allegations. Mr. Sullivan made a specific request that Convertino be allowed to respond to Acting U.S. Attorney Craig Morford’s motion, in both defense of the case and of the accusations made against the original trial team. Judge Rosen refused to allow it, and made his decision just a few short days after the government’s motion.

Making his decision without all of the facts was not the only thing Judge Rosen did wrong. Judge Rosen’s actions throughout the court ordered “file review” not only influenced the ultimate overturning of the convictions by the government, but they continue to influence the retaliatory efforts by the Justice Department against my husband.

THE FILE REVIEW

I had occasion to speak with Judge Rosen in February of 2004. During our conversation, the Judge discussed a newspaper article printed in The Detroit Free Press in January which was a leak of an internal OPR investigation against the lead prosecutor on the case, AUSA Richard Convertino. These investigations were part of retaliatory efforts against Convertino for his testimony before the Senate Finance Committee in September, 2003. I indicated to Judge Rosen my concern that the leaking of this information was an attempt to influence the judge. During this meeting, Judge Rosen promised me that my husband, AUSA Richard Convertino, would have an opportunity to defend the case, either directly to the judge or in an evidentiary hearing, prior to his making any decision on the defense’s motion. Judge Rosen also told me of his concern that if he had to have an evidentiary hearing he “may have to be a witness in his own case.” This statement tells me that Judge Rosen recognized a potential for partiality and conflict at that point. As I left his chambers he assured me Rick would have an opportunity to speak with him and be involved in the future business of this case. This did not happen.

I should have realized that it would not. Judge Rosen’s leanings had already become questionable when he ordered a complete file review of the case after a hearing in December 2003. A letter from a notorious inmate drug dealer named Melvin “Butch” Jones, received by the U.S. Attorney’s office prior to the trial, was deemed to be ridiculous by the U.S. Attorney’s Office (see attached). It was therefore never turned over to the defense. It was further thought that Mr. Jones had copied much of his information about the government’s witness from a newspaper article as he was able to spell the witness’s name, Youssef Hmimssa, but frequently misspelled much easier words. It was also noted that although Mr. Jones volunteered to take a lie detector test, the F.B.I. made a notation that he failed it.

After the trial ended and AUSA Convertino was removed from the case for his testimony before the Senate Finance Committee, the Butch Jones letter was secretly turned over to the defense council and the judge by the new AUSA assigned to the case. Since the new AUSA never consulted with any member of the original team, and not all of the documents that were turned over to the defense for trial were marked, it remains unknown how the AUSA concluded that the defense had not received the letter, which makes the motives behind this suspicious.

Judge Rosen openly expressed his anger that he had not known about the letter previously and ordered a file review. Judge Rosen indicated to Mr. Sullivan during a phone conversation that he didn’t think the letter constituted Brady material, but he was angry that the prosecutors thought they could make that decision without consulting him. (All during the trial, and at the hearing about this letter, Judge Rosen insisted that it was his decision, not the prosecutors, to decide what constitutes as Brady material during a trial. He has since changed his position publicly at a legal symposium where he admitted that he was wrong about that point. He qualified his having been wrong by saying that he believes that is how it “should” be.) If he truly did not think the letter constituted as Brady material, then ordering the complete file review that followed was apparently based on ego and not legal reasoning. From what I understand, it is unheard of that a Federal Judge would order a complete file review based on only one piece of evidence. I also understand that the judge’s role should have been only to decide whether or not the letter was Brady material, and that it was not properly his role to determine “why” it wasn’t turned over.

In the December 2003 hearing it is clear from the transcripts that the Judge and the Defense Attorneys had all heard about “Butch” Jones and his “claims” either before or during the trial, and just like the prosecutors, none believed him to be credible. The judge even admonished a defense attorney for not following up on the information. (See attachment) In my opinion, the hearing on the Jones letter was unnecessary and a bit of “grandstanding” on the part of the judge.

While Judge Rosen admitted to his prior knowledge of Jones in the “interest of full disclosure,” he also justified a complete file review of the case based on the letter, even though Jones stated in the hearing that he would have refused to testify at the trial. The file review lasted over nine months. Judge Rosen was reported to have said that if the plug needed to be pulled on the case, the U.S. Attorney’s office would have to do it, because he was unwilling to make that decision.

The memo filed by Acting U.S. Attorney Craig Morford, which supported overturning the convictions in the Detroit Terrorism Case, provided an easy out for Judge Rosen. If he had been forced to make specific findings of his own, he might have opened himself up to further speculations of misconduct that had already been reported about in some national newspapers.

Further, while he ordered a file review against the prosecution, Judge Rosen failed to follow-up on questionable ethical violations brought out during the trial that were committed by defense attorneys. One violation included two defense attorneys stealing the Chief Judge’s stationary and forging a note. Another was regarding a defense attorney’s attempt to get a witness to change his testimony.

Judge Rosen was aware that the file review process was done absent any communication with the original prosecution team, because I told him this myself. Judge Rosen was aware that the prosecutors in charge of the file review never consulted with the original prosecutors regarding what was or was not turned over to defense attorneys, since not all documents were marked. They also did not consult with the original prosecutors regarding what was or was not available to the original prosecutors at the time of trial. Knowing this, he arranged for disputed documents to be turned over to the defense attorneys and the original prosecution team at the same time, rendering it impossible for the original team to identify documents not available to them at trial, or the ability to identify documents that had already been given over to the defense.

Allowing the sheer number of documents to be given over, even though not Brady materials, sensationalized the perception that important materials had been withheld by the original prosecution team and made the documents and speculation of their value susceptible to press leaks.

THE CODE OF CONDUCT

The Code of Conduct for United States Judges helped me to formulate my complaint. As I read the Canons, I started to apply some of the actions taken by the Court in this case.

Canon 2 states, “A JUDGE SHOULD AVOID IMPOROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES”.

Of special note under this canon is the statement,

“A judge should not lend the prestige of the judicial office to advance the private interests of others; nor convey or permit others to convey the impression that they are in a special position to influence the judge. A judge should not testify voluntarily as a character witness.”

Judge Rosen violated this canon in several ways:
• In addition to Judge Rosen ordering a complete file review of the case, he allowed the Justice Department limitless time to investigate potential misconduct charges against the prosecution team, lending credibility to its efforts.
• These issues should have been handled independently of one another; Judge Rosen should not have had knowledge or involvement in the internal probes by the Justice Department against the prosecution as this would cause potential bias.
• While the motion for a new trial was yet to be decided, Judge Rosen agreed to be interviewed by the FBI about the lead prosecutor on the case by the Public Integrity Section. He also allowed his staff to be interviewed.
• His personal knowledge and cooperative involvement in the Justice Department’s investigation against the lead prosecutor advanced the “private interests” of those who were retaliating against AUSA Convertino.
• The Judge and his staff participated in interviews with Public Integrity personnel, but refused to meet with AUSA Convertino or any other member of the original prosecution team. Convertino was specifically denied meetings with the Judge on two separate occasions in October and November 2003 even though the judge recognized that he was “a party in interest.”

According to another canon,

• “A judge should accord to every person who is legally interested in a proceeding, full right to be heard.”
• By, in essence, by his voluntarily testifying as a character witness, and by never allowing AUSA Convertino to present his side, this certainly showed not just a potential for bias, but a true bias.



Canon 3 states, A JUDGE SHOULD PERFORM THE DUTIES OF THE OFFICE IMPARTIALLY AND DILIGENTLY”.

Under this canon, “a judge should accord to every person who is legally interested in a proceeding, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte communications on the merits, or procedures affecting the merits, of a pending or impending proceeding.”

It also states that,

“A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances in which: (a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.”

Judge Rosen demonstrably violated this Canon:

• When he met with “Butch” Jones and his attorney in an ex-parte meeting in his chambers, unbeknownst to all interested parties. Judge Rosen had this meeting after the hearing in December 2003. During the meeting I had with Judge Rosen in February 2004, he told me he thought that Jones was “credible,” in that Jones and the government’s witness had spoken to one another. However, that did not necessarily mean that what Jones stated in the letter was true. This now became a disputed evidentiary issue. The jury did not have the benefit of hearing Butch Jones and deciding whether or not he was credible. Jones was never cross-examined in front of a jury. But the jury did get to hear the testimony of the person he claimed to have had information on. The government’s witness admitted to being a self-proclaimed liar. After the verdicts were in, a juror told the newspapers, “he told us he was a liar, and we believed him.” Obviously, the jury did not base the verdicts on his testimony alone.
• The judge and the defense counsel all admitted to having prior knowledge of Jones.
• This ex-parte meeting, and the prior knowledge of Jones, gave Judge Rosen “personal knowledge of disputed evidentiary facts concerning the proceeding.”
• Judge Rosen had frequent meetings with Craig Morford, the special attorney assigned to oversee the file review and who was also overseeing the investigations of Convertino.
• There was supposed to be a “Chinese wall” between the two investigations, but Morford and Judge Rosen were involved in both the file review and the investigation of prosecutorial misconduct.
• Defense attorneys also became involved when Judge Rosen ruled that the Defense attorneys may also be interviewed by Public Integrity regarding Convertino. They were all interviewed prior to the decision to overturn the convictions.

The canon further states that,

“A judge should dispose promptly of the business of the court.”

• A nine month file review, that the judge conceded, in his own opinion, “far exceeded the boundaries or expectations of the court,” was not in any sense prompt.
• The file review constituted a re-investigation and re-trying of the case behind the scenes, and went beyond what was available to the prosecution at the time of the trial. It included evidence not previously available to the trial team, as well as interviews concerning personal opinions regarding trial strategy and personalities.
• It became apparent that Judge Rosen was waiting for the investigation against Convertino to conclude prior to making a ruling. Instead of making a judicial decision based on the merits, he obviously wanted the U.S. Attorney’s office to make the decision for him. One can only assume that he did not want to sustain a conviction and later have the Justice Department admonish the prosecution. Equally, he did not want the decision to potentially let terrorists go free to rest on his shoulders alone. Having the Justice Department “pull the plug” prevented that from happening. As previously mentioned, Judge Rosen gave unlimited time to the investigators, going well beyond the file review, to make that decision.

The canon further states,


“A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel subject to the judge's direction and control.”

• Judge Rosen was seen having lunch with a Detroit News Reporter, and the following day an article by that same reporter cited “court sources” in his article.
• There was also an Associated Press article titled, “Terror Trial Judge Interviewed by FBI,”on July 3, 2004., where it was reported that Judge Rosen “confirmed he has talked to several reporters despite having imposed gag orders on lawyers” and “[h]e confirmed he met around the time of his FBI interview Y with a Detroit reporter [David Shepardson], who later wrote on details of the case quoting courthouse sources.”(See attachment).
• There was also an article written about Judge Rosen traveling to CIA headquarters to ask a former CIA agent, William McNair, to write an affidavit against Convertino. Defense attorneys acknowledged that they did not know “specifically” what the judge was doing, just that “in general” they knew he was talking to people. Convertino and his attorney did not know about the trip. McNair’s affidavit starts with a statement confirming it is written at the request of the court. Again, “A judge should not lend the prestige of the judicial office to advance the private interests of others,” or if the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding…” If Judge Rosen had discussed this with any member of the original prosecution team, he would have found that McNair was not deemed a competent witness at trial because he had no experience in “tradecraft” and was regarded by other legal experts as a CIA “talking head.” Again, Judge Rosen was involved in disputed evidentiary facts.



I believe that Judge Rosen’s personal need for publicity and “the spotlight” allowed him to be pulled into the “drama” surrounding the case and caused him to engage “in conduct prejudicial to the effective and expeditious administration of the business of the courts.” In summary, as a result of Judge Rosen’s actions, he has given the distinct appearance of bias and partiality, and was not able to be a neutral and detached arbiter of the facts that had been pending before him, and in doing so, he has advanced the retaliatory interests of the Department of Justice against my husband.

Most recently, Judge Rosen made a public apology to a defendant in the terrorism case that the government still considers to be a risk to national security. He travels the country to discuss how a terrorism case “ought not” to be prosecuted, while still not knowing the facts behind the government’s action.

I ask that the 6th Circuit open up an investigation into Judge Rosen’s actions, and that it not dismiss this complaint out of hand because it may wrongly assume that “action on the complaint is no longer needed because of intervening events.” Judge Rosen’s actions continue to have an impact on the treatment of my husband by the Justice Department, but most importantly, his actions may have an impact on our country’s future fight in the war against terror.
Sincerely,

Valerie Convertino