- The Washington Times - Monday, March 13, 2006

An angry federal judge considered today whether to dismiss the government’s death penalty case against confessed al-Qaida conspirator Zacarias Moussaoui after a federal attorney coached witnesses in violation of her rules.

“I do not want to act precipitously,” U.S. District Judge Leonie Brinkema said in scheduling a special hearing on the case Tuesday, but she said that it was “very difficult for this case to go forward.”

Brinkema said a lawyer for the Transportation Security Administration sent e-mail to seven Federal Aviation Administration officials outlining the prosecution’s opening statements and providing commentary on government witnesses from the first day of testimony. That was in violation of her pretrial order barring witnesses from exposure to any opening statements or trial testimony.

“An attorney for the TSA … egregiously breached that order,” she told jurors before excusing them until Wednesday. Of the seven, three were to testify for the government and four were potential defense witnesses.

Government officials identified the attorney as Carla Martin.

Brinkema wanted to hear Tuesday from the seven and from the attorney who contacted them to help her decide whether to throw out the government’s case. If she does, Moussaoui would escape the possibility of execution and be sentenced to life in prison without chance of parole.

She said the rule against witnesses hearing testimony in advance is “a very important protection of the truth-seeking process.”

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

The stunning development came at the opening of the fifth day of the trial after the government informed the judge and the defense over the weekend of the attorney’s contact.

“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 of the United States in the context of a death case,” Brinkema told lawyers outside the presence of the jury.

Defense attorney Edward MacMahon moved to have the judge dismiss the death penalty as a possible outcome, saying “this is not going to be a fair trial.” In the alternative, he said, at least she should excuse the government’s FAA witnesses from the case.

Prosecutor David Novak replied that removing the FAA witnesses would “exclude half the government’s case.” Novak suggested instead that the problem could be fixed by a vigorous cross-examination by the defense.

But Brinkema said she would need time to study what to do.

“In all the years I’ve been on the bench, I have never seen such an egregious violation of a rule on witnesses,” she said.

The defense did not move for a mistrial, which would have restarted the proceedings.

Moussaoui is the only person charged in this country with the 9/11 attacks. He pleaded guilty in April to conspiring with al-Qaida to hijack planes and to other crimes, but he denies any role in 9/11. He says he was training for a possible future attack.

Brinkema noted that Thursday, Novak asked a question that she ruled out of order after the defense said the question should result in a mistrial. In that question, Novak suggested that Moussaoui might have had some responsibility to go back to the FBI, after he got a lawyer, and then confess his terrorist ties.

Brinkema 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.

Even prosecutor Novak conceded that the witness coaching was “horrendously wrong.”

Attorney General Alberto Gonzales declined comment on the developments.

MacMahon said the government had told the defense that the TSA attorney had wanted the witnesses to be very careful in discussing the FBI agent’s acknowledgment that the FBI knew long before Sept. 11, 2001, that al-Qaida terrorists in the Philippines were working on a plan to fly an airplane into CIA headquarters.

The federal attorney also apparently told the witnesses - erroneously, Novak said - that the government was planning to say that magnetometers at airport check-ins are 100 percent effective.

Novak claimed there was no harm in that disclosure because the government is not going to make that argument.

Before the trial was recessed by Brinkema, the jury was to hear from the Minneapolis FBI agent who arrested Moussaoui - perhaps the key witness in the trial.

Special Agent Harry Samit’s testimony is equally important to prosecutors and the defense at Moussaoui’s sentencing trial. Samit, who has already testified for the prosecution, faced cross-examination.

Prosecutors say Samit and the FBI would have foiled the Sept. 11 attacks had Moussaoui confessed his membership in the al-Qaida terror network and his plans to hijack an airplane after he was arrested on Aug. 16, 2001, and interrogated by Samit.

The defense argues Moussaoui’s lies made no difference because Samit saw through them and was convinced Moussaoui was a threat.

Up to now the burden of proof was this: To obtain the death penalty, prosecutors must first prove that Moussaoui’s actions - specifically, his lies- were directly responsible for at least one death on Sept. 11.

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