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.
With Brinkema's ruling, the entire second half of their case is lost, prosecutors said. The barred witnesses are federal airline security experts who would have testified about the measures the government would have taken based on Moussaoui's information, such as putting the hijackers on no-fly lists and scouring passengers for the small-bladed knives the hijackers used.
"Without aviation, they have no chance of showing that one of those four hijacked planes could have been stopped," said Andrew McBride, a former federal prosecutor in Alexandria closely following the case. "They promised the jury two parts: The FBI gets the right information if he blows the whistle, and steps are then taken at the airports. That second piece is now gone."
Complicating the situation further, it appeared questionable yesterday whether the government has a realistic chance of persuading a higher court to overturn Brinkema's decision if she declines to reverse it. Federal law says rulings that throw out evidence or testimony can be appealed only before trial.
The government could, legal experts said, take an unusual route by asking the U.S. Court of Appeals for the 4th Circuit to issue what is known as a writ of mandamus, which would order Brinkema to restore all or part of the disputed evidence.
But experts said that even the 4th Circuit, which tends to strongly support the government on national security issues and which overturned an earlier Brinkema ruling in the Moussaoui case, would be hesitant to intervene here. "It's a very high hurdle. They have to show a clear error in the law by Brinkema," McBride said. "I don't think they have an appeal."
The legal maneuvering was another twist in the often convoluted case against Moussaoui, 37, who pleaded guilty in April. A French citizen, Moussaoui said Osama bin Laden had personally instructed him to fly an airplane into the White House, but he denied involvement in the Sept. 11 attacks. Moussaoui was first charged in December 2001, and the case has been delayed numerous times.
The latest problem emerged Monday, when prosecutors informed Brinkema that Martin had violated a court order by e-mailing trial transcripts to the seven aviation witnesses and coaching them on their testimony. Brinkema had earlier ruled that most witnesses could not attend or follow the trial and could not read transcripts.
Martin, who had been a liaison between prosecutors and the aviation witnesses, offered an extraordinary criticism of the prosecution case in her e-mails. She said the government's opening statement "has created a credibility gap that the defense can drive a truck through." And she questioned the core government argument that the Sept. 11 attacks could have been prevented by heightened security at airports.
Brinkema issued her ruling at the close of a hearing Tuesday that explored Martin's actions.
In their motion yesterday, prosecutors said the testimony of five of the witnesses at the hearing showed that they "were not the least bit affected by Ms. Martin's e-mails and comments, other than to be annoyed by them. They learned no fact from Ms. Martin that they had not already known for years."