- The Washington Times - Friday, October 8, 2004

The judge who presided over the biggest terrorism trial since September 11 left his Detroit courtroom, traveled to CIA headquarters, and helped interview a witness whose testimony later became key to the judge’s reversal of convictions in the case.

Government officials familiar with the interview told the Associated Press that the judge and Justice Department officials worked together outside the presence of defense lawyers to conduct the interview because of concerns about protecting secret information under the Classified Information Procedures Act.

But legal experts said U.S. District Judge Gerald Rosen’s actions were highly unusual and could provide grounds for lawyers to challenge his impartiality because he assumed the role of investigator in a case over which he continued to preside.

“Based on those facts, is it proper? The answer is no,” said Peter Henning, a law professor at Wayne State University who has followed closely the unraveling of the Detroit terror case. “A judge is not supposed to engage in investigation off the [official court] record and with people who are aligned with one of the parties.”

Experts said CIPA doesn’t exempt judges from ethics rules and the judge should have formally notified both sides and held a closed-door hearing for those with security clearances if he wanted to hear from the witness. The hearing should have been held at the courthouse.

“CIPA doesn’t really contemplate a judge doing his own national-security investigative work,” said John Barrett, a law professor at St. John’s University. “This is a novel situation.”

Judge Rosen flew to CIA headquarters in Northern Virginia last spring to review classified documents and join Justice prosecutors in interviewing retired CIA officer William McNair.

Mr. McNair then filed an affidavit in the case that accused prosecutors of ignoring his pretrial warnings that some evidence they used to convict members of an accused Detroit terror cell was flawed.

Mr. McNair’s affidavit accused lead trial prosecutor Richard Convertino of “shopping for an opinion” and ignoring his warnings about a sketch found in the Detroit defendants’ apartment that prosecutors portrayed as a key piece of evidence during the trial.

The CIA officer said he warned Mr. Convertino repeatedly that CIA experts “did not believe the sketch conveyed any useful information” and was probably created by “someone who was not very well trained.”

The Justice Department cited Mr. McNair’s affidavit in a dramatic report in August that acknowledged that prosecutors withheld or miscast evidence. Judge Rosen then cited the Justice Department’s admission as grounds for dismissing the convictions last month.

That August report, however, made no mention of Judge Rosen’s role in the McNair interview. It also omitted the fact that numerous top Justice officials, before the 2003 trial, tried to get an FBI agent to testify for the prosecution, instead of Mr. McNair, because they had concerns about Mr. McNair’s credentials.

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