Terrorist may avoid death in 9/11 case Moussaoui witnesses apparently coached
Richard A. Serrano Los Angeles Times Mar. 14, 2006 12:00 AM
ALEXANDRIA, Va. - The prosecution's carefully laid plan to secure the death penalty against confessed terrorist Zacarias Moussaoui neared collapse Monday when an incensed federal judge halted his sentencing trial and ordered a hearing to investigate widespread witness tampering by government officials.
U.S. District Judge Leonie Brinkema took under advisement a defense request to drop the death penalty from the case, which would leave life in prison as the only possible sentence. After four days of testimony in the government's showcase trial growing out of the events of Sept. 11, its prosecution appeared to be unraveling.
"In all the years I have been on the bench," Brinkema told a hushed and crowded courtroom, "I have never seen such an egregious violation."
A judge for 12 years, she called a government lawyer's attempt to shape the testimony of seven key witnesses a "significant error ... affecting the constitutional rights of this defendant and, more importantly, the integrity of the criminal-justice system in this country."
This morning, Brinkema plans to convene an extraordinary evidentiary hearing to probe how deeply the prosecution's case has been damaged. All seven aviation witnesses, along Carla Martin, a senior Transportation Security Administration attorney, are expected to testify. The jury will not be present.
The judge then will rule on whether to grant the defense team's request to end the trial with a life sentence for Moussaoui. Or she could rule that none of the seven aviation witnesses can testify before the jury. She could conclude that no damage was done and the trial can proceed, although that seemed unlikely.
Any of those actions could be appealed, raising the prospect of extensive delays and posing the question of whether to dismiss the jury and start over.
Moussaoui unexpectedly pleaded guilty last year to capital murder for having a role in the Sept. 11 conspiracy, and the government has made it a top priority to win the death penalty under the theory that, although he was in jail at the time of the attacks, he could have prevented the attacks by telling the FBI about the plot.
The botched handling of witnesses in Moussaoui trial is the latest in a series of missteps and false starts that have beset the Bush administration's prosecution of terrorism cases.
The government has seen juries reject high-profile terrorism charges, judges throw out convictions because of mistakes by the prosecution, and the FBI suffer the embarrassment of wrongly accusing an Oregon lawyer of participating in the 2004 Madrid train bombings.
"There have been a lot of flubs," said Stephen Saltzburg, a George Washington University law professor. "I think most observers would say they were underwhelmed by the prosecutions brought so far."
On several occasions, top administration officials have promised more than they delivered. For example, then-Attorney General John Ashcroft announced from Moscow in 2002 that the arrest of Jose Padilla, a Bronx-born Muslim, had disrupted a plot to "explode a radiological dispersion device, or 'dirty bomb,' in the United States."
Padilla was held nearly four years in a military brig, with no charges filed against him. This year, as his lawyers appealed his case to the Supreme Court, the administration indicted him in Miami on a charge of conspiring to aid terrorists abroad. There was no mention of the "dirty bomb" plot.
In other cases, prosecutors took to court cases that proved to be weak:
A computer science student in Idaho was accused of aiding terrorists when he designed a Web site that included information on terrorists in Chechnya and Israel. A jury in Boise, Idaho, acquitted Sami Omar Al-Hussayen of the charges in June 2004.
A Florida college professor was indicted and accused of supporting terrorists by promoting the cause of Palestinian groups. A jury in Tampa acquitted Sami Al-Arian of those charges last December.
Two Detroit men arrested a week after the Sept. 11 attacks were believed to be plotting a terrorist attack, in part based on sketches found in their apartment.
A judge overturned the convictions of Karim Koubriti and Abdel-Ilah Elmardoudi after he learned the prosecutor's key witness had admitted lying to the FBI, a fact the prosecutor had kept hidden.
But Andrew McBride, a former federal prosecutor in Virginia, said it was unfair to blame prosecutors for the apparent witness-tampering in the Moussaoui case.
"You can't really lay this at the door of the prosecution," he said. "This is a lawyer at the TSA (Transportation Security Administration) who screwed up.
"The rule of witnesses is pretty well known. You would think she would know you are not supposed to discuss the earlier testimony with your witnesses."
At issue in the witness-tampering charges is the pending testimony of seven Federal Aviation Administration officials who were prepped by an attorney for the security agency.
The witnesses are crucial in the government's effort to prove that had Moussaoui cooperated with the FBI upon his arrest in August 2001, critical information could have been relayed to the FAA to help stop the terror hijackings and attacks on Sept. 11.
Although preparation of witnesses is common, Brinkema issued a special order Feb. 22 warning that witnesses must not be coached and should not be read or provided transcripts of opening statements or testimony of other witnesses in the case.
But the government notified the court Monday that Carla Martin, the federal attorney, did just that by sending copies of court transcripts around to the witnesses as well as summaries of the testimony of FBI Special Agent Michael Anticev, the government's lead-off witness, when the sentencing trial got under way March 6.
"We really are left speechless, frankly," prosecutor David Novak told the judge, conceding that Martin's actions were "wholly improper" and could seriously hamper the government's case.
"We're really not in a position to defend her conduct," Novak said.
His boss, U.S. Attorney Paul McNulty in Alexandria, wrote the judge saying, "We view Ms. Martin's conduct as reprehensible, and we frankly cannot fathom why she engaged in such conduct."
Without elaboration, prosecutors said Martin no longer works for the Transportation Security Administration.
Defense lawyer Edward MacMahon Jr. immediately asked that the death penalty be stricken as a possible punishment for the 37-year-old Moussaoui, leaving life in prison with no parole as the only other option.
"This is not going to be a fair trial anymore," he said, arguing that the government was trying to "shape" witness testimony.
In Martin's e-mails to witnesses, she repeatedly voiced concerns about whether prosecutors were overselling to the jury the FAA's ability to stop the hijackers at the airports and prevent them from boarding the four planes even if Moussaoui had tipped off the government that the attacks were coming. Her e-mails appeared aimed at protecting the interests of the FAA.
Martin could not be reached for comment.
Officials at the security agency declined to talk about her e-mails and the problems they have posed for the trial.
Much of the Moussaoui case has been wrapped in secrecy for 4?years, but Brinkema insisted Monday that the Martin e-mails be unsealed.
"If the death penalty winds up being dismissed," she said, "the public has a right to know how and why it happened."