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Moussaoui judge: Death penalty still on table

Trial delayed until Monday to allow time for U.S. appeal

From Phil Hirschkorn
CNN

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ALEXANDRIA, Virginia (CNN) -- A federal judge decided Tuesday to let the government continue to pursue the death penalty against al Qaeda conspirator Zacarias Moussaoui, though she gutted about half of the prosecutors' case by barring six witnesses.

Saying she was troubled by witness coaching and other government missteps, Judge Leonie Brinkema ruled that the jury deciding whether Moussaoui is executed or spends the rest of his life in prison won't hear from aviation security witnesses.

The judge delayed testimony until Monday to give federal prosecutors time to appeal.

Brinkema, who has presided over the trial for more than four years, decided to keep Federal Aviation Administration witnesses from the stand as a remedy for misconduct by a government lawyer, Carla J. Martin.

Martin was not a member of the prosecution team, but she sent trial transcripts and comments to seven witnesses by e-mail. The government cut one of those witnesses from its list.

A senior lawyer with the Transportation Security Administration, Martin did not testify Tuesday. She is no longer working as a liaison between prosecutors and the agency.

The government's misconduct, the judge said, went beyond coaching witnesses to include misrepresenting their willingness to talk with Moussaoui's defense.

"Whether these witnesses have actually been tainted or not is almost impossible to tell," Brinkema said.

"I don't think at this point the case needs to stop," the judge added. "However, in the annals of criminal law, I don't know if there has ever been a case with this many significant problems."

Brinkema said Martin's actions violated Brinkema's February 22 court order that witnesses not observe or read trial proceedings, or discuss their testimony with each other.

Tuesday's daylong hearing also revealed what Brinkema called an ethical violation by Martin, who informed the trial lawyers that three aviation officials the defense hoped to call as witnesses had refused to meet with them.

Those witnesses later said they had never heard of an invitation, and two of them said they would have accepted one.

Brinkema called Martin's information, contained in a prosecutor's letter last month to the defense, a "bald-faced lie."

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

Defense attorney Edward MacMahon said Moussaoui's right to a fair trial has been violated by Martin's false information, as well as her improper witness coaching.

"There isn't any way of putting the genie back in the bottle," he argued.

Prosecutors sought to distance themselves from Martin, but Brinkema observed, "As a team, it's still one government."

To do nothing to sanction the prosecution, she added, would be to "turn our criminal justice system on its head."

Prosecutors told Brinkema they intend to appeal her ruling to the 4th Circuit Court of Appeals in Richmond, which has overturned Brinkema sanctions in this case before.

The ruling is damaging to the government, taking away one of the two prongs of its case.

Prosecutors had intended to show steps the FBI and aviation officials could have taken to thwart the September 11, 2001 terrorist attacks, had Moussaoui not lied to the FBI a month earlier. He is the only person charged in connection with those attacks. (Watch a 9/11 family member react -- 2:00)

The key aviation officials whom prosecutors planned to call were Lynne Osmus, the FAA assistant administrator for security and hazardous materials, and her deputy, Claudio Manno.

They both testified they did not know they were violating a rule when they read Martin's trial reports, but said her attempts to coach them had no impact.

"We didn't think it was particularly pertinent to what we'd be testifying about," Manno said. "I can only testify to the facts as I know them, and that's it."

Manno also said that he and Osmus considered Martin a nuisance who peppered them with unwanted e-mail.

"Part of it was Ms. Martin had a tendency to go off on tangents," Manno said. "She was taking up quite a bit of our time."

Osmus told prosecutor David Novak of Martin's communications at a trial-preparation meeting Friday.

The government informed the court Monday, and Brinkema sent the jury home and ordered Tuesday's hearing.

The Justice Department later said in a written statement that Brinkema's decision was "disappointing, especially given the quick actions taken by Justice Department lawyers to report the misconduct, which occurred without the knowledge of the prosecutors."

Moussaoui pleaded guilty in April to conspiring with al Qaeda to fly airplanes into U.S. buildings but denies any direct involvement with 9/11.

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