lawyer coached witnesses-Moussaoui Death Penalty Case May Be Tossed

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Moussaoui Death Penalty Case May Be Tossed
By MATTHEW BARAKAT, Associated Press Writer
26 minutes ago



The federal judge in the Zacarias Moussaoui case is
considering ending the death-penalty prosecution of
the al-Qaida conspirator after learning that a federal
lawyer apparently coached witnesses on upcoming
testimony.

U.S. District Judge Leonie Brinkema said Monday it was
"very difficult for this case to go forward" after
prosecutors revealed that a lawyer for the
Transportation Security Administration had violated
her order barring witnesses from any exposure to trial
testimony.

Brinkema sent the jury home until Wednesday while she
considers her options.

If she bars the government from pursuing the death
penalty, the trial would be over and Moussaoui would
automatically be sentenced to life in prison without
possibility of release. The government likely would
appeal that ruling.

A hearing is scheduled for Tuesday to determine the
scope of the problem. The TSA lawyer, Carla Martin,
and most of the seven witnesses — past or present
employees of the Federal Aviation Administration who
received e-mails from Martin — are expected to
testify.

The judge said she had "never seen such an egregious
violation of a rule on witnesses," and prosecutor
David Novak agreed that Martin's actions were
"horrendously wrong."

Defense lawyer Edward MacMahon asked Brinkema to
dismiss the government's death-penalty case, saying,
"This is not going to be a fair trial."

At the very least, he said the government's FAA
witnesses should be excluded. But prosecutor Novak
protested they represented "half the government's
case."

"There is no way to un-ring the bell," the defense
said in a court filing Monday night. "The FAA
witnesses have been tainted and no matter how much
they contend that they can be truthful, they have been
coached concerning the defects in the government's
case and how to overcome those defects."

In a filing of its own, the government said there is
no need to exclude the FAA witnesses from testifying,
saying the violation of the court's order, "while
egregious," can be remedied when the witnesses are
questioned in front of the jury.

Martin's e-mails to the upcoming witnesses included
excerpts of the government's opening statement and
Martin's assessment that the opening statement "has
created a credibility gap that the defense can drive a
truck through." She expressed concern that FAA
witnesses would be made to look foolish on
cross-examination and warned them to be prepared for
certain topics.

Brinkema said the violation was compounded by the fact
that Martin e-mailed the witnesses jointly, violating
standard practice against joint interviews of
witnesses.

"What that leads to is the very real potential that
witnesses are rehearsed, coached or otherwise that the
truth-seeking concept of a proceeding is significantly
eroded," Brinkema said.

Efforts to reach Martin for comment by telephone were
unsuccessful.

Brinkema said she also would reconsider the defense's
request of last week for a mistrial — made after a
question from Novak suggested to the jury that
Moussaoui might have had an obligation to confess his
terrorist connections to the FBI even after he had
invoked his right to an attorney.

She noted that when Novak asked the question Thursday,
she ruled it out of order after the defense said the
question should result in a mistrial.

The judge warned the government at that point that it
was treading on shaky legal ground because she knew of
no case where a failure to act resulted in a death
penalty as a matter of law.

"This is the second significant error by the
government affecting the constitutional rights of this
defendant and, more importantly, the integrity of the
criminal justice system in this country," Brinkema
said Monday.

Of the seven witnesses whose testimony was potentially
tainted, three were expected to be government
witnesses and four were expected to be defense
witnesses. Novak suggested that, in lieu of dismissal,
perhaps two of the government's witnesses should be
excluded from trial and the defense could present its
FAA witness evidence through a stipulation rather than
by testimony, meaning the defense witnesses would not
be subject to cross-examination.

Moussaoui pleaded guilty in April to conspiring with
al-Qaida to hijack aircraft and commit other crimes,
and the current trial will determine his punishment:
life in prison, or death.

He is the only person charged in this country with the
Sept. 11, 2001 attacks, but he has specifically denied
any link to 9/11 and says he was training to be part
of a possible future attack. Prosecutors, to obtain
the death penalty, must prove that Moussaoui's actions
resulted in at least one death on Sept. 11.

Brinkema barred prosecutors from seeking the death
penalty against Moussaoui once before, in 2003, after
the government refused to let the defense question key
al-Qaida leaders in U.S. custody. But an appellate
court overruled her in 2004 and reinstated the death
penalty as an option.

Moussaoui appeared amused as the lawyers debated how
to proceed. Leaving the courtroom, he said, "The show
must go on."

Attorney General Alberto Gonzales declined comment on
the developments.

Thomas G. Connolly, a former federal prosecutor in
northern Virginia, called the TSA lawyer's actions "a
monumental blunder" that puts Brinkema in "an
impossible position."

"Either she goes forward with a record that is subject
to a strong challenge on appeal and faces the
possibility of having to do this all over again or she
finds the case is now so tainted that she declares a
mistrial and has to do it all over. And her third
option is equally bad: dismissing the death penalty
and not permitting the victims' families to see the
process play out in court."

Aitan Goelman, a former federal prosecutor who worked
on the Timothy McVeigh and Terry Nichols trials for
the 1995 bombing of the federal building in Oklahoma
City, said he did not believe the mistake warranted
dismissal.

"There's a whole range of remedies," he said.
"Exclusion of witnesses seems to be the punishment
that fits the crime."

___

Associated Press Writer Michael J. Sniffen contributed
to this report.