The Final Verdict

Prosecutors Scramble to Salvage 9/11 Case After Ruling

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By Jerry Markon
Washington Post Staff Writer
Thursday, March 16, 2006

Federal prosecutors yesterday implored a judge to reverse her decision banning key witnesses from testifying at the death penalty trial of Zacarias Moussaoui, saying the misconduct of a government lawyer they labeled a "lone miscreant" should not imperil the case.

Calling it unprecedented and "grossly punitive," prosecutors said her ruling devastates their argument that Moussaoui should be executed for the Sept. 11, 2001, terrorist attacks. U.S. District Judge Leonie M. Brinkema on Tuesday barred seven witnesses and all aviation security evidence from the trial, saying the actions of Transportation Security Administration lawyer Carla J. Martin had tainted the process beyond repair.

At a minimum, prosecutors urged Brinkema to let them present a portion of the disputed evidence through a new witness who had no contact with Martin. A veteran government lawyer, Martin shared testimony and communicated with the seven witnesses in violation of a court order and committed what Brinkema called other "egregious errors."

"The evidence goes to the very core of our theory of the case," the prosecutors wrote in a motion for reconsideration, filed late yesterday. "Accordingly, the public has a strong interest in seeing and hearing it, and the court should not eliminate it from the case."

After her ruling Tuesday, prosecutors told Brinkema in a teleconference that she had threatened the sentencing phase of the only person convicted in the United States on charges stemming from the Sept. 11 attacks. Assistant U.S. Attorney Robert A. Spencer told her that resuming the proceedings, which began last week in U.S. District Court in Alexandria and are on hold until Monday, would "waste the jury's time."

"We don't know whether it is worth us proceeding at all, candidly, under the ruling you made today," he told Brinkema, according a transcript obtained yesterday. "Without some relief, frankly, I think that there's no point for us to go forward."

In their filing late yesterday, however, prosecutors tried to salvage their case against Moussaoui, who pleaded guilty last year to conspiring with al-Qaeda in the Sept. 11 attacks. Prosecutors urged Brinkema to allow them to present the limited aviation evidence about how the Federal Aviation Administration issues "no fly" lists to keep suspected terrorists off airplanes.

"Permitting the government to offer this evidence will allow us to present our complete theory of the case, albeit in imperfect form," the filing concluded.

The filing said that scores of government officials have interviewed thousands of witnesses and compiled millions of documents in the Moussaoui case. "In this sea of government attorneys and agents who have assiduously played by the rules, Ms. Martin stands as the lone miscreant,'' the prosecutors wrote.

Prosecutors said Martin's misconduct may have risen to the level of criminal behavior, and they singled out an instance in which she told Assistant U.S. Attorney David J. Novak that witnesses sought by defense attorneys had refused to meet with them. Novak then relayed Martin's information, which Brinkema called "a baldfaced lie," to the defense.

Brinkema's ruling makes it highly unlikely that the jury would vote for death. The case has been challenging from the start because Moussaoui was sitting in jail when the planes were hijacked and flown into the World Trade Center and the Pentagon. Federal law allows executions only for those who kill someone or directly cause a death.

Prosecutors are trying to overcome that hurdle by saying that if Moussaoui had not lied to the FBI about his knowledge of the Sept. 11 plot, the hijackings could have been prevented. Their argument has two key components. If Moussaoui had told the truth, the government says, the FBI would have scrambled to stop the hijackings -- and the Federal Aviation Administration would have increased security at the nation's airports.


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