By Jerry Markon and Timothy Dwyer
Washington Post Staff Writers
Tuesday, March 14, 2006
A federal judge halted the trial of Zacarias Moussaoui yesterday and threatened to remove the death penalty as a possible sentence for the Sept. 11 conspirator after a veteran government aviation lawyer improperly shared testimony and communicated with witnesses.
U.S. District Judge Leonie M. Brinkema, clearly exasperated by the new problems in the oft-delayed case, called the conduct of Carla J. Martin, a Transportation Security Administration lawyer, "the most egregious violation of the court's rules on witnesses" she had seen "in all the years I've been on the bench."
Even prosecutors were stunned by Martin's actions, calling them "reprehensible" in court papers and adding, "We frankly cannot fathom why she engaged in such conduct."
Martin violated a court order by e-mailing trial transcripts to seven witnesses -- all current and former federal aviation employees -- and coaching them on their upcoming testimony, court papers say. She also shared the e-mails among the witnesses.
Brinkema had ruled earlier that most witnesses could not attend or follow the trial and could not read transcripts. She told jurors yesterday that the ruling was "meant to prevent witnesses from comparing their testimony or listening to what other witnesses said and changing their own testimony."
The judge ordered a hearing today to find out how the incident happened. To sanction the government for the error, she could remove the death penalty, forbid the witnesses from testifying or declare a mistrial. The government could appeal either of the first two sanctions.
Further embarrassing the government, Martin's e-mails sharply criticized prosecutors' case, saying, among other things, that their opening statement "has created a credibility gap that the defense can drive a truck through."
Martin did not return calls to her home or office yesterday and did not answer the door at her apartment.
Moussaoui, 37, has pleaded guilty for conspiring with al-Qaeda in the Sept. 11, 2001, attacks on the World Trade Center and Pentagon. Prosecutors in Alexandria are seeking his execution. If Brinkema were to forbid the death penalty, the case would end and Moussaoui would be sentenced to life in prison. It would be a huge setback for the government.
"This is the only opportunity for the government to make a Sept. 11 case. This is it. There isn't another," said Juliette Kayyem, a terrorism expert at Harvard University. "The government has to cross every t and dot every i to ensure that the Sept. 11 families finally have their day in court. If it gets messed up over a technicality . . . there is no excuse."
Duke University law professor Robert P. Mosteller said ethical restrictions against speaking with witnesses are drilled into every attorney. "Lawyers don't do things like this," he said. "The federal rule on witnesses is elegant in its simplicity, and it's usually not something people get wrong."
TSA officials referred calls to the Justice Department. Justice Department officials declined to comment.
Martin, an aviation security expert, had served as a liaison between prosecutors and witnesses expected to testify about airport security. She was working with government and defense witnesses and was not a member of the prosecution team. Brinkema told jurors before dismissing them for the day that prosecutors deserved "great credit" for reporting the error to her.
Defense attorneys accused Martin of trying to shape the testimony of key witnesses. "This is not going to be a fair trial anymore . . . because of what a lawyer did in an absolute abrogation of your rules," defense attorney Edward B. MacMahon Jr. said as he urged Brinkema to strike the death penalty.
Brinkema has removed the death penalty once, in 2003, after the government disobeyed her order to allow Moussaoui's attorneys to interview captured al-Qaeda leaders who they said could clear him. Eventually, she was overruled by a higher court.
Fordham Law School professor James Cohen, an expert in witness tampering, said dismissing the death penalty this time "might be too harsh a penalty." Other legal specialists said Brinkema might strike the testimony of the witnesses with whom Martin communicated. Those witnesses, three for the government and four for the defense, are expected to testify about what the government might have done to boost airport security if Moussaoui had confessed his knowledge of the Sept. 11 plot when he was arrested in August 2001.
Even that would be a severe blow to the government because that is the crux of its argument for execution: If Moussaoui had not lied to the FBI, the attacks could have been prevented. Assistant U.S. Attorney David J. Novak said in court yesterday that the testimony of the contacted witnesses constituted "half the evidence in this case."
Prosecutors urged Brinkema last night to throw out neither the death penalty nor the testimony of the seven witnesses, saying defense attorneys can address any problems caused by Martin's e-mails during direct or cross-examination. "Dismissal of the death notice is simply too extreme a sanction and the public should not be deprived of its right to see this trial proceed to verdict," the prosecution filing said. The filing, however, acknowledged that Martin had intended "to better prepare the witnesses for questions by the defense."
Court papers said the government learned of Martin's e-mails when one of the witnesses who received them, Lynne Osmus, approached prosecutors Friday night. Osmus, who is assistant administrator for security and hazardous materials at the Federal Aviation Administration, declined to comment yesterday.
Novak then learned that Martin had also e-mailed the other witnesses. Court documents say they include Robert White, a former FAA liaison to the CIA's Counterterrorism Center who works at the TSA, and Pat McDonnell, the FAA's retired director of aviation security and intelligence.
Martin's e-mails were highly critical of the government's case, especially an assertion by prosecutors that the government could have stopped the Sept. 11 terror attacks if Moussaoui had not lied to the FBI by, among other things, having the FAA focus airport security on short-bladed knives. The Sept. 11 hijackers used such knives to take over four airplanes.
"There is no way anyone could say that the carriers could have prevented all short bladed knives from going through -- Dave [Novak] MUST elicit that from you and the airline witnesses on direct, and not allow the defense to cut your credibility on cross," Martin wrote.
Defense attorneys noted that Martin has been present from the beginning at almost every proceeding in the Moussaoui case, including sensitive hearings.
She was a career FAA attorney who moved to the new Transportation Security Administration in 2002, largely because of her work on the case of the 1988 explosion of Pan Am Flight 103 over Lockerbie, Scotland, officials familiar with her work said. Martin represented the government at a civil trial in which victims' families sued the airline. She was there to make sure that sensitive information was not discussed in open court.
Several officials, speaking on condition of anonymity because of the sensitivity of the case, said Martin often served as a liaison with Justice Department lawyers in aviation security cases.
Staff writers Karin Brulliard, Sara Kehaulani Goo, Ian Shapira and Mary Beth Sheridan contributed to this report.