[Mb-civic] Prosecutors Scramble to Salvage 9/11 Case After Ruling - Washington Post

[William Swiggard]

Prosecutors Scramble to Salvage 9/11 Case After Ruling

By Jerry Markon
Washington Post Staff Writer
Thursday, March 16, 2006; A10

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."

http://www.washingtonpost.com/wp-dyn/content/article/2006/03/15/AR2006031501121.html?nav=hcmodule
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