- The Washington Times - Wednesday, March 15, 2006

Prosecutors seeking the death penalty for al Qaeda terrorist Zacarias Moussaoui yesterday asked a judge to reconsider her ban on testimony from aviation security specialists coached by an outside lawyer.

In a motion filed with U.S. District Judge Leonie M. Brinkema, prosecutors argued that the pending testimony is crucial to the government’s case, saying it “goes to the very core of our theory of the case.”

The prosecutors said that at the very least, they should be allowed “to present our complete theory of the case, albeit in imperfect form” by questioning a newly designated aviation security witness.

On Tuesday, Judge Brinkema blocked any testimony and evidence from several Federal Aviation Administration (FAA) officials because they had been briefed about the case and given trial transcripts by Transportation Security Administration (TSA) lawyer Carla J. Martin.

The judge had issued an order barring witnesses from attending the trial or reading transcripts.

The new request follows a conference call late Tuesday in which Assistant U.S. Attorney Robert A. Spencer told Judge Brinkema the government did not know “whether it is worth us proceeding at all, candidly, under the ruling you made today because without some relief, frankly I think there’s no point for us to go forward,”

During the call, according to a transcript released by the court, Mr. Spencer said that “rather than waste the jury’s time and the court’s time, and we’re all mindful of the expense of this proceeding, that we ought just to weigh our rights for reconsideration or our appellate rights.”

After threatening to drop the death penalty as an option, Judge Brinkema ruled that prosecutors could continue to seek the death penalty and delayed further proceedings in the trial until Monday.

Moussaoui pleaded guilty in April to conspiring to attack U.S. targets, and he faces life in prison without the possibility of parole if the government opts not to seek the death penalty.

Prosecutors have said the terrorist attacks on September 11 could have been prevented if Moussaoui had not lied to the FBI after his August 2001 detention on immigration charges. The FAA witnesses were being called to testify what the government could have done if Moussaoui had told the truth.

Moussaoui’s defense attorney, Edward B. MacMahon, said during the conference call that the government may not have the right to appeal the ruling to the 4th U.S. Circuit Court of Appeals in Richmond because the trial is under way.

Ms. Martin is accused of improperly sharing information with the witnesses and was threatened by the judge during a hearing on Tuesday with contempt charges. She also is accused of telling prosecutor David J. Novak that the witnesses had refused to meet with Moussaoui’s defense team — a claim the witnesses denied during questioning on Tuesday and Judge Brinkema called “a bald-faced lie.”

“I cannot allow that kind of conduct to go without there being serious sanctions,” Judge Brinkema said as she ordered the FAA testimony barred. “It would likely turn the criminal justice system on its head. I don’t think in the annals of criminal law there has ever been a case with this many significant problems.”

Prosecutors told Judge Brinkema on Monday that Ms. Martin had sent trial transcripts to the seven witnesses and had coached them on their pending testimony.

During Tuesday’s hearing, one of the FAA witnesses, Lynne Osmus, assistant administrator for security and hazardous materials, told Judge Brinkema she reported Ms. Martin’s communications, which were e-mails, to prosecutors on Friday because she thought they were “an odd communication.”

Ms. Osmus said she was concerned when Ms. Martin told her “please don’t respond,” saying she “didn’t want to have secret discussions with her.”

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