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U.S. blunder may save Moussaoui

E-mail reveals lawyer's attempt to coach seven witnesses

From Phil Hirschkorn
U.S. District Judge Leonie Brinkema was upset Monday that witnesses had been coached.



Zacarias Moussaoui
September 11 attacks
Capital Punishment

ALEXANDRIA, Virginia (CNN) -- A federal judge threatened to throw out the death penalty at the sentencing trial of al Qaeda conspirator Zacarias Moussaoui after prosecutors disclosed Monday that a government lawyer tried to coach seven witnesses.

U.S. District Judge Leonie Brinkema sent the jury home and scheduled a hearing Tuesday to investigate what she said could be a "very serious taint of a key portion of this case."

Prosecutors disclosed Monday that seven current and former Federal Aviation Administration employees were sent transcripts from last week's opening statements and testimony.

Brinkema said that "blatantly" violated her February 22 order that witnesses "may not attend or otherwise follow trial proceedings; for example, may not read transcripts, before being called to testify."

The judge voiced her clear displeasure: "In all the years I've been on the bench, I have never seen such an egregious violation of a rule on witnesses."

A lawyer for the Transportation Security Administration, Carla Martin, e-mailed the transcripts, prosecutors told the judge in a letter.

Three of the FAA witnesses are on the government's witness list, and four are on the defense witness list.

Martin, who was admitted to the federal bar in 1990, was not a member of the prosecution team and is no longer the TSA liaison.

Defense attorneys asked for a mistrial, or for Brinkema to sanction the government by taking the death penalty off the table.

"This isn't going to be a fair trial," Moussaoui lawyer Edward MacMahon said.

Two witnesses read transcripts

The witnesses affected include Lynne Osmus, who became the FAA's assistant administrator for security and hazardous materials in 2003, and her deputy, Claudio Manno.

All seven witnesses read the e-mails sent by Martin, but only two of them said they read the attached transcripts, according to documents filed with the court.

"We view Ms. Martin's conduct as reprehensible, and frankly we cannot fathom why she engaged in such conduct," prosecutors wrote in their letter disclosing the violations. They called Martin's comments "misguided opinions."

Although they had been filed under seal, Brinkema made public the full contents of the government's disclosure, including Martin's e-mail and responses from the witnesses.

Several exchanges dealt with the heart of the government's case, as laid out in opening statements.

Prosecutor Robert Spencer told the jury the attacks could have been averted if Moussaoui had revealed he was preparing for hijackings with the short knives he possessed when arrested in mid-August 2001.

The FAA would have alerted security agents to screen passengers for knives shorter than four inches long, which the 9/11 hijackers used to commandeer four passenger jets, Spencer said.

E-mail: 'Big gaps'

Referring to Spencer's opening statement, Martin told witness Pat McDonnell, the FAA's head of intelligence on 9/11, "There are big gaps that the defense can exploit."

"The opening (statement) has created a credibility gap the defense can drive a truck through," Martin wrote to Osmus. "There is no way anyone could say carriers could have prevented all short knives from going through."

"That's all it would take to prevent the 9/11 attacks from happening? I don't think so," Martin wrote.

"Got your message," a reply from Osmus was titled. "And agree (we) need to be careful in describing how these (security) measures would have impacted the attack."

Martin advised witnesses how FBI counterterrorism agent Michael Anticev "got tripped up" on a past terrorism plotter who conceived before his capture in the mid-1990s of crashing an explosives-laden plane into the CIA headquarters.

"I will go over this with you," Martin wrote to Manno. "The issue of, did we ever explore the scenario of flying planes into buildings."

Brinkema explained the problem to jurors, telling them her order keeping witnesses away from others' trial testimony is a "very important protection of the truth-seeking process of a trial."

Moussaoui pleaded guilty 11 months ago to taking part in an al Qaeda conspiracy to hijack planes and fly them into buildings. But he denies any role in 9/11.

Trial decides punishment

The trial is being held to determine his punishment.

Prosecutors argue that Moussaoui deserves to be executed because he lied to the FBI in August 2001, covering up his al Qaeda membership and the real reason he was attending U.S. flight schools. Those lies, prosecutors allege, contributed to nearly 3,000 murders on September 11.

If Brinkema declares a mistrial or sanctions the government by striking the death penalty, she would sentence Moussaoui to life in prison without possibility of parole.

"I do not want to act precipitously," Brinkema said. She noted that she and the attorneys involved with Moussaoui for more than four years have "too much time invested in this case."

But, she said, the witness coaching controversy is not the government's first misstep in the week-old trial.

"This is the second significant error of the government affecting the constitutional rights of this defendant, and more importantly, it affects the integrity of the criminal justice system in the United States."

The defense asked for a mistrial last week, after a prosecutor posed an improper question to an FBI agent.

At that time, Brinkema warned prosecutors they were heading toward "delicate" legal ground.

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