ALEXANDRIA, Va. – Prosecutors had already been warned they were treading on delicate ground in their death-penalty case against Zacarias Moussaoui. Now they’ve been hit by the legal equivalent of an earthquake: disclosure that a government lawyer was coaching witnesses.
On Monday the federal judge presiding over the sentencing trial of the confessed al-Qaida conspirator sent the jury home for two days while she considers dismissal of the government’s bid for the death penalty.
The judge’s wrath was directed at a lawyer with the Transportation Security Administration, Carla J. Martin, who e-mailed seven witnesses with suggestions on how to craft their testimony, based on detailed information from the government’s opening statement and the first day of trial testimony.
“This attorney … has blatantly violated the court’s order” barring witnesses from any exposure to trial testimony and opening statements, U.S. District Judge Leonie Brinkema said. “It is very difficult for this case to go forward.”
Brinkema scheduled a hearing today to determine the scope of the problem. Martin, who is not a prosecutor but has been involved in the case, and most of the seven witnesses are expected to testify.
This is not the first time that Brinkema has contemplated severe sanctions against the government. In 2003, she barred prosecutors from pursuing the death penalty against Moussaoui after the government refused to allow the defense to question key al-Qaida leaders in U.S. custody. But an appellate court overruled her in 2004 and reinstated the death-penalty option.
Martin’s gaffe has opened that door again. Brinkema said she had “never seen such an egregious violation of a rule on witnesses.” 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, MacMahon said the government’s FAA witnesses should be excluded. Novak protested they represented “half the government’s case.”
Martin’s e-mails included excerpts of the government’s opening statement and Martin’s assessment that it “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 she would also take a new look at the defense’s request for a mistrial, made last week after a question from prosecutor David 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.
Brinkema rejected the defense request for a mistrial on Thursday, but she went on to warn warned prosecutors they were “treading on delicate legal ground” because she knew of no case where a failure to act resulted in a death penalty as a matter of law.
On Monday, Brinkema said, “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.”
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 could 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.
If Brinkema 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 could appeal that ruling.
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.
Moussaoui appeared amused as the lawyers debated how to proceed. Leaving the courtroom, he said, “The show must go on.”
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 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.”
Moussaoui is the only person charged in this country with the Sept. 11, 2001 attacks. While Moussaoui has pleaded guilty to conspiracy, he denies 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.
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Associated Press Writer Michael J. Sniffen contributed to this report.
AP-ES-03-13-06 1756EST
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