- The Washington Times - Friday, March 17, 2006

A federal judge in the death penalty trial of admitted al Qaeda terrorist Zacarias Moussaoui yesterday changed course and said the prosecutors can call “untainted” aviation specialists as witnesses, restoring a major part of the government’s case.

U.S. District Judge Leonie M. Brinkema did not overturn her Wednesday ruling to bar witnesses coached by an outside lawyer, but granted prosecutors’ request to offer new witnesses and evidence.

In her order, the judge said the new witnesses can only testify to what the U.S. government “could have done to prevent” the September 11 attacks had Moussaoui disclosed during his August 2001 arrest that he was training to attack U.S. targets with planes.

“The witness, or witnesses, may not, however, testify as to what the United States government ‘would’ have done with this information, as such testimony would be unduly speculative and misleading to the jury,” she said.

The ruling was a victory for prosecutors, who had considered abandoning their case when Judge Brinkema banned testimony from Federal Aviation Administration officials because they were given transcripts of the trial in violation of earlier court orders.

Moussaoui, 37, a French citizen of Moroccan descent, pleaded guilty in April to charges of conspiring with al Qaeda terrorists in the September 11 attacks that killed nearly 3,000 people. The penalty trial is to determine whether he should be sentenced to life in prison without the possibility of parole or receive a lethal injection.

He denied being a part of the initial attack but said he was in training for a second wave of hijacked airplanes to slam into U.S. targets. In his plea, Moussaoui admitted knowing the 19 al Qaeda hijackers were going to fly aircraft into U.S. buildings.

Transportation Security Administration lawyer Carla J. Martin, who coached the witnesses, has since been placed on paid administrative leave from her $120,000-a-year job as an attorney adviser.

She has been threatened by the judge with criminal and civil contempt and has been labeled by prosecutors as a “miscreant,” whose “aberrant and apparently criminal behavior should not be the basis for undoing the good work of so many.”

Moussaoui’s lawyers argued that it will be difficult to find any witness who has not been following the recent events in the trial.

“The existence of such a person is difficult, if not impossible to imagine and assurances that there is a rock at the FAA under which that person has been found should be greeted with the skepticism it plainly deserves,” defense attorney Edward B. MacMahon Jr. said.

In a separate motion, Mr. MacMahon said, “The government should not be given an end-run around its creation of a record simply too riddled with problems.”

Judge Brinkema ordered the government to provide “the name or names of such untainted witnesses” to the defense no less than three days before they are to testify.

She also told prosecutors to hand over to defense counsel all appropriate information as well as untainted physical evidence as soon as it is available.

The trial is scheduled to resume at 9:30 a.m. Monday.

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