- The Washington Times - Wednesday, March 15, 2006

Prosecutors seeking the death penalty against confessed terrorist Zacarias Moussaoui told a federal judge that it would be a waste of time to continue the trial after key government witnesses were barred from testifying.

The government is considering an appeal of U.S. District Judge Leonie Brinkema’s decision yesterday that guts roughly half of the federal case against Moussaoui.

Brinkema issued the sanctions because a government lawyer violated trial rules by coaching witnesses on their testimony and improperly giving them access to trial transcripts.

Brinkema delayed the trial until Monday to give prosecutors a chance to sort out their options.

In a conference call yesterday between the judge and lawyers, Assistant U.S. Attorney Rob Spencer bluntly described the impact of Brinkema’s ruling.

“We don’t know whether it is worth us proceeding at all, candidly, under the ruling you made today,” Spencer said, according to court transcripts of the hearing, which was closed to the public. “Because without some relief, frankly, I think that there’s no point for us to go forward.”

Spencer went on to say that resuming the trial under the current conditions would “waste the jury’s time and the court’s time.”

But defense lawyer Edward MacMahon said prosecutors cannot appeal Brinkema’s ruling to the 4th U.S. Circuit Court of Appeals in Richmond because the trial is already under way. Spencer said that even if MacMahon’s legal interpretation is correct, the government still has the right to ask Brinkema to reconsider her ruling.

Brinkema said during the teleconference that she didn’t know whether her ruling could be appealed.

Justice Department spokeswoman Tasia Scolinos called the decision disappointing. Without addressing the likelihood of overturning Brinkema’s ruling, she stressed that prosecutors have already obtained a guilty plea from and at a minimum he will be imprisoned for life without possibility of release.

Brinkema’s ruling rejected a defense request for more serious sanctions - dismissal of the government’s entire death-penalty case.

The judge penalized prosecutors after learning Transportation Security Administration lawyer Carla Martin had violated trial rules. Martin had improperly prepared seven witnesses from the Federal Aviation Administration for questions on cross-examination by sending them trial transcripts.

Federal rules of evidence prohibit witnesses from exposure to trial testimony because of the possibility they will alter their testimony based on what they learn.

“I don’t think in the annals of criminal law there has ever been a case with this many significant problems,” Brinkema said after Tuesday’s hearing uncovered even more government misconduct.

Moussaoui is the only person charged in this country with the Sept. 11, 2001 attacks. He pleaded guilty in April to conspiring with al-Qaida to hijack aircraft and other crimes, but he denies any involvement in 9/11, saying he was training for a possible future attack.

The sentencing trial that began last week will determine Moussaoui’s punishment: death or life in prison.

Six witnesses who testified outside the jury’s presence yesterday - all present or former FAA employees - said Martin’s exhortations would not have affected their testimony. But Brinkema said that wasn’t clear.

“Whether the witnesses have actually been tainted or not is almost impossible to tell,” Brinkema said. “There are a number of errors so serious that that portion of the government’s case has been seriously eroded.”

Martin had been expected to testify yesterday, but she invoked her right to an attorney. That attorney, Roscoe Howard, later advised her not to testify.

E-mails written by Martin reveal she believed prosecutors had overstated the FAA’s ability to prevent the 9/11 attacks in their opening statement to the jury, and the FAA witnesses had to be prepared for aggressive cross-examination as a result.

Tuesday’s hearing revealed even more missteps by Martin. In one instance, defense lawyers sought to meet with two TSA employees who might be called as defense witnesses, but Martin falsely told the defense that the two were unwilling to meet with them.

The aviation witnesses are key to prosecutors’ efforts to obtain the death penalty, which they must prove by showing Moussaoui’s actions resulted in at least one death on Sept. 11.

The witnesses were expected to testify that they would have issued alerts and implemented security measures at the airports if Moussaoui had revealed his al-Qaida membership and the true intent of his flight training when he was arrested and interrogated by federal agents in August 2001.

Prosecutors can appeal Brinkema’s ruling to the 4th U.S. Circuit Court of Appeals in Richmond. They filed a pretrial appeal in 2003 when Brinkema struck the death penalty as punishment for the government’s refusal to allow defense questioning of al-Qaida witnesses in U.S. custody. The appellate court overruled Brinkema in 2004 and reinstated the death-penalty option.

Outside the courthouse, Abraham Scott of Springfield, Va., whose wife Janice Marie died at the Pentagon on 9/11, called Brinkema’s ruling “a fair decision,” though he was disappointed that the stricken testimony will not expose some of the FAA’s failings prior to the attacks.

Related article:

Moussaoui judge allows option of death penalty

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