Feds try to salvage Moussaoui case
Prosecutors seek reversal on aviation security testimony
From Phil Hirschkorn
Zacarias Moussaoui is the only person tried in the United States in connection with the 9/11 attacks.
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ALEXANDRIA, Virginia (CNN) -- Federal prosecutors Wednesday asked a judge to reconsider what they called a "terribly excessive" ruling in an effort to salvage their crippled death-penalty case against al Qaeda conspirator Zacarias Moussaoui.
The prosecutors also dubbed a "miscreant" the government lawyer who provided courtroom transcripts to witnesses. Her actions prompted U.S. District Judge Leonie Brinkema to bar all witnesses and evidence related to aviation security.
Prosecutors said the judge's sanction in the first U.S. case to arise out of the September 11, 2001, terrorist attacks was "disproportionate to the prejudice that the defendant could conceivably have suffered." They urged her to consider alternatives.
The 22-page pleading asked Brinkema to retract or at least reduce the penalty resulting from Transportation Security Administration lawyer Carla Martin's meddling with aviation witnesses after the trial began last week. (Read the motion)
"The penalty is misplaced. Punitive measures, to the extent necessary, should be Ms. Martin's problem," prosecutors said.
Martin, 51, a government lawyer for more than 15 years, faces possible contempt-of-court or witness-tampering charges. (Watch a profile on Carla Martin -- 1:52)
Six of the witnesses -- two for the prosecution and four for the defense -- appeared at a special hearing Tuesday.
Brinkema found it "almost impossible to tell" how much the witnesses had been tainted by exposure to opening statements and testimony transcripts. Martin violated an order by Brinkema who told witnesses to avoid hearing or reading about the case or discussing it with each other.
Martin has been placed on administrative leave, a Department of Homeland Security official said.
Lawyers: witnesses unaffected
Prosecutors want Brinkema to permit the jury to hear from Lynne Osmus, the Federal Aviation Administration assistant administrator for security and hazardous materials, and her deputy, Claudio Manno.
Both told Brinkema that Martin's improper communications would not alter their testimony about airport security before September 11.
"The aviation witnesses, who have spent entire careers studying aviation safety and security, were not the least bit affected by Ms. Martin's e-mails and comments, other than to be annoyed by them," prosecutors said. "They learned no fact from Ms. Martin that they had not already known for years."
The hearing also revealed that Martin lied when she informed Moussaoui's lawyers that the aviation officials they subpoenaed refused to meet with them.
"To the extent there is any prejudice, it easily can be cured through vigorous [cross] examination of the 'tainted' witnesses and by allowing witnesses who were denied an opportunity to meet with the defense a chance to do so," prosecutors said.
Rather than excising the subject of aviation security from the trial, prosecutors also asked the judge to allow testimony from aviation security experts who had no contact with Martin.
"The sanction is terribly excessive," prosecutors said. "There are any number of ways the government can present completely untainted aviation proof. The court has not even offered the government an opportunity to try."
Brinkema's ruling stopped short of granting the defense request to dismiss the death-penalty option.
Testimony deemed crucial
But without aviation security testimony and evidence, Brinkema acknowledged, the government loses one of the two main prongs of its argument for executing Moussaoui.
Since he pleaded guilty to conspiring with al Qaeda to hijack planes and crash them into buildings, the only question for jurors is Moussaoui's punishment.
If the jury rejects the death penalty, Moussaoui, a 37-year-old French citizen of Moroccan heritage, will be sentenced to life in prison. He has denied any direct involvement with the 9/11 plot.
"Unless the court reconsiders its sanction, this jury and the public will see only half the picture of what could have happened had the defendant told the truth, prosecutors said.
Prosecutors have told the jury that Moussaoui's lies to federal agents in mid-August 2001 contributed directly to nearly 3,000 deaths on September 11.
Had Moussaoui revealed his al Qaeda ties and the terror group's hijacking plans, prosecutors say, the FBI and aviation security officials would have taken steps to thwart the plot.
The two prongs of their case would be the offense and defense security officials would have undertaken. While the FBI would have taken the offensive, prosecutors say, the defensive case rests on the aviation security measures that would have been taken to save lives.
"Eliminating the entire FAA portion of the equation -- its 'no fly' lists, enhanced gate security and use of the CAPPS [passenger screening] system," prosecutors said, deprives them of any "way to show what the FBI could have done with information it had obtained about the hijackers."
The defense disputes the theory that investigators could have unraveled the September 11 plot in the 25 days between Moussaoui's arrest on an immigration violation in Minnesota and the terrorist attacks in New York and Washington.
The prosecutors' harshest words were directed at Martin, who helped prepare witnesses and declassify documents. Brinkema said she "wouldn't trust anything that Ms. Martin had anything to do with."
For more than four years, scores of government agents and lawyers "have assiduously played by the rules," they said.
"Ms. Martin stands as the lone miscreant. Her aberrant and apparently criminal behavior should not be the basis for undoing the good work of so many."
There's no word on whether Brinkema will schedule a hearing on the motion or just issue an order after she receives the defense's reply.
On Tuesday prosecutors had viewed their prospects grimly, according to a transcript of a closed-door meeting with the judge.
"We don't know whether it is worth us proceeding at all, candidly, under the ruling you made today. And that's why we need to assess it. Because without some relief, frankly, I think that there's no point for us to go forward," prosecutor Robert Spencer told Brinkema after her ruling Tuesday gutted his case.
He asked for time for prosecutors to regroup and mull their options.
Brinkema has delayed the resumption of the trial until Monday.
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