[Mb-civic] Judge Halts Terror Trial - Washington Post

[William Swiggard]

Judge Halts Terror Trial
Lawyer E-Mailed Court Transcripts To 7 Witnesses

By Jerry Markon and Timothy Dwyer
Washington Post Staff Writers
Tuesday, March 14, 2006; A01

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.

http://www.washingtonpost.com/wp-dyn/content/article/2006/03/13/AR2006031300506.html?referrer=email
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