- The Washington Times - Monday, March 13, 2006

The federal judge overseeing the sentencing trial for admitted al Qaeda terrorist Zacarias Moussaoui yesterday angrily threatened to dismiss the death penalty option after accusing a government official of “egregiously” violating an order against coaching witnesses in the case.

U.S. District Judge Leonie M. Brinkema scheduled a special hearing for today, after telling the jury that a Transportation Security Administration (TSA) attorney sent an e-mail to seven Federal Aviation Administration (FAA) officials outlining the prosecution’s opening statements and commentary on the government’s witnesses from the first day of testimony.

Judge Brinkema said the e-mail and commentary violated a pretrial gag order barring witnesses from exposure to any opening statements or trial testimony.

“I do not want to act precipitously,” the judge said, but added that it was “very difficult for this case to go forward.”

Of the seven FAA officials who received the information, three were scheduled to testify for the government and four were listed as potential witnesses. Government officials identified the TSA attorney as Carla Martin.

Judge Brinkema said she wanted to question the seven FAA officials and the TSA attorney during the special hearing before making any decision on whether to throw out the government’s case. If the death penalty option is rejected, Moussaoui — who pleaded guilty to charges of conspiring with al Qaeda terrorists to attack targets in the United States — would be sentenced to life in prison without the possibility of parole.

The judge said the ruling against witnesses hearing testimony prior to their court appearance was “a very important protection of the truth-seeking process” and told the attorneys after the jury had been excused that this was “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.”

Moussaoui’s defense attorney, Edward MacMahon, asked the judge to dismiss the death penalty, saying, “This is not going to be a fair trial.”

He also suggested that Judge Brinkema excuse the FAA witnesses from the case, a request that was rejected by prosecutor David Novak, who said a decision to eliminate the testimony of the FAA witnesses would “exclude half the government’s case.”

Judge Brinkema did not rule on either the defense suggestion or the government’s concerns, saying only that she needed time to consider the matter. But she added, “In all the years I’ve been on the bench, I have never seen such an egregious violation of a rule on witnesses.”

Attorney General Alberto R. Gonzales declined to comment during a press conference to announce the appointment of a new assistant attorney general for national security. He said he was “not going to speculate on what the judge may or may not do,” adding that “given where we are in the state of this trial, it would be inappropriate for me to comment at all.”

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