- The Washington Times - Tuesday, March 14, 2006

A federal judge yesterday said the government can continue to pursue the death penalty for admitted terrorist Zacarias Moussaoui, but barred testimony from Federal Aviation Administration officials coached by a top government attorney.

U.S. District Judge Leonie M. Brinkema, angry that a Transportation Security Administration (TSA) attorney violated an order and briefed seven FAA witnesses about earlier testimony, had considered removing the death penalty as a sentencing option.

“I don’t think in the annals of criminal law there has ever been a case with as many significant problems,” Judge Brinkema said after a daylong hearing on the issue.

Judge Brinkema also said potential testimony and evidence sought by the government concerning aviation security were “irredeemably contaminated.”

The now-barred FAA witnesses were key to the government’s claim that Moussaoui’s cooperation while being held on immigration charges could have helped federal aviation officials prevent the September 11 attacks.

With the jury excused, the FAA employees — including Lynne Osmus, who was deputy associate administrator of FAA’s civil aviation security program on the morning of the September 11 attacks, and her deputy, Claudio Manno — told the judge the briefing would not affect their testimony.

TSA attorney Carla J. Martin has been accused of briefing the witnesses and faces contempt charges. She was ordered to testify yesterday, but was granted a delay when she appeared in court without counsel.

Moussaoui, 37, a French national of Moroccan descent, pleaded guilty in April to conspiring with the 19 al Qaeda terrorists who crashed four hijacked jetliners into the World Trade Center, the Pentagon and a field in Pennsylvania, killing nearly 3,000 people.

Moussaoui, who faces life in prison without the possibility of parole or death by lethal injection, says he was not part of the plot for September 11 but a later attack. A 12-member jury is hearing the case.

Judge Brinkema issued an order Feb. 22 warning that witnesses were not to be coached or given transcripts of either the opening statements or the testimony of other witnesses.

But on Monday, prosecutors acknowledged to the judge that Ms. Martin had sent to the seven witnesses copies of court transcripts and summaries of the testimony of the first witness, FBI Supervisory Agent Michael Anticev.

Prosecutor David J. Novak told the judge Ms. Martin’s actions were “wholly improper” and the government was not in a position to defend her conduct. In a letter to the judge, U.S. Attorney Paul J. McNulty called Ms. Martin’s conduct “reprehensible.”

Moussaoui’s defense attorney, Edward MacMahon, had asked the court to remove the death penalty as an option, saying the fact that potential witnesses had been coached by the government made it impossible for his client to get a fair trial.

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