March 14, 2006

Judge Calls Halt to Penalty Phase of Terror Trial

By NEIL A. LEWIS
http://www.nytimes.com/2006/03/14/national/14moussaoui.html?_r=2&oref=slogin&oref=login

ALEXANDRIA, Va., March 13 An angry federal judge delayed the sentencing trial of Zacarias Moussaoui on Monday and said she was considering ending the prosecution's bid to have him executed after the disclosure that a government lawyer had improperly coached some witnesses.

Judge Leonie M. Brinkema said she had just learned from prosecutors that a lawyer for the Transportation Security Administration gave portions of last week's trial proceedings to seven witnesses who have yet to testify. In e-mail messages, the lawyer also seemed to tell some of the witnesses how they should testify to bolster the prosecution's argument that Mr. Moussaoui bore some responsibility for the deaths caused by the Sept. 11, 2001, attacks.

"In all my years on the bench, I've never seen a more egregious violation of the rule about witnesses," Judge Brinkema said before sending the jury home for two days. She said that the actions of the government lawyer, identified in court papers as Carla J. Martin, would make it "very difficult for this case to go forward."

According to the filings, Ms. Martin sent e-mail messages to the seven witnesses, all current or former government aviation officials. In most of her messages, Ms. Martin included the transcript of the opening trial statements along with her criticism that prosecutors had, in her view, "created a credibility gap that the defense can drive a truck through."

She also included portions of a transcript of the testimony of an F.B.I. agent who first said last Tuesday that the bureau was not looking at the possibility before Sept. 11 that terrorists might use airplanes as weapons. But the agent, Michael Anticev, acknowledged under cross-examination that the bureau had indeed known of earlier plans by Al Qaeda to fly planes into the C.I.A. headquarters in Langley, Va., and into the Eiffel Tower. She suggested ways that the witnesses not repeat that mistake.

Mr. Moussaoui, a 37-year-old Frenchman of Moroccan heritage, is the only person charged in an American court with involvement in the Sept. 11 terrorist plot. At the time of the attacks, Mr. Moussaoui was already in jail, having been arrested three weeks earlier on immigration violations in Minnesota, where he was taking lessons to fly a jetliner.

The Justice Department has argued that even though he was not a direct participant in the Sept. 11 attacks, he is responsible for those deaths because he lied to investigators when he was arrested, concealing his knowledge of Al Qaeda's interest in flying planes into buildings.

Prosecutors contend that if Mr. Moussaoui had told the truth, his answers would have forced government aviation officials to increase security, possibly foiling the plot. Because Mr. Moussaoui has already pleaded guilty to conspiracy charges in connection with the Sept. 11 attacks, the sole question before the jury is whether he should be executed or imprisoned for life.

Although Judge Brinkema expressed pessimism about the case going forward, she added, "I do not want to act precipitously," and scheduled a special court session Tuesday to interview the seven witnesses who received Ms. Martin's e-mail messages.

But Edward B. MacMahon Jr., the principal court-appointed defense lawyer for Mr. Moussaoui, said the only remedy was for the court to rule out the death penalty.

"The proceedings really just should be dismissed and Mr. Moussaoui just sentenced to life in prison," Mr. MacMahon said. "We're not going to get a fair trial anymore."

David J. Novak, a prosecutor, told Judge Brinkema that he was appalled at Ms. Martin's actions. But he suggested that the problem could be remedied by allowing defense lawyers latitude in cross-examining the aviation officials.

Mr. MacMahon disagreed and said that even prohibiting the witnesses from testifying at all would still leave significant problems. Of the seven witnesses, four are scheduled to testify for the defense, he noted, and Mr. Moussaoui would be deprived of their testimony. Ms. Martin did not respond to an e-mail message and a request for an interview.

Judge Brinkema left open the possibility that she might rule at the end of Tuesday's interviews with the witnesses or more likely on Wednesday when the jury returns. Almost all of the options open to her, from dismissing the death penalty to allowing the trial to go forward, could be reviewed by an appeals court.

Although Judge Brinkema praised the prosecutors for disclosing Ms. Martin's actions, she noted that it was the second time that government lawyers had caused concerns about a fair trial for Mr. Moussaoui. On Thursday, she admonished Mr. Novak for his questioning of the F.B.I. agent who was given deceptive answers when he arrested Mr. Moussaoui. Mr. Novak asked the agent if Mr. Moussaoui had ever reached out from his local jail cell to tell him he had lied and that he knew of Qaeda plots.

At the time Mr. Moussaoui was in jail, he had invoked his constitutional right to remain silent, and Judge Brinkema said the question was inappropriate.

"Now we have two very serious problems," she said Monday. The weight judges give to trial flaws that may raise issues of fairness is often magnified in death penalty trials because the sentence is so final.

Judge Brinkema, who had earlier tried to strike the death penalty from the trial only to be overruled by an appeals court, was unstinting in her anger over Ms. Martin's actions. She noted that she issued an order in the trial that is typical in such cases, ordering that witnesses not be allowed to compare their testimony with others.

"It's a very important protection of the truth-seeking process of a trial, and we take that rule very seriously," Judge Brinkema said.

In one of Ms. Martin's e-mail messages, dated last Wednesday, she told Lynne Osmus, who was the Federal Aviation Administration's head of security on Sept. 11, to be careful about her testimony about allowing passengers with short-bladed knives aboard airliners before the attacks. Prosecutors have argued that the F.A.A. might have stopped people with boarding airliners if they had short knives, which they did not do before Sept. 11.

Saying that the prosecutors created a wide credibility gap, she told Ms. Osmus, "There is no way that anyone could say that the carriers could have prevented all short-bladed knives from going through." She said the prosecutor "must elicit that from you and the witnesses on direct and not allow the defense to cut your credibility on cross."

To Claudio Manno, who had been Ms. Osmus's deputy at the time, Ms. Martin wrote last week: "The defense will try to exploit the fact that the F.A.A. was not clued in to what was going on. You need to assert that we did not necessarily need to wait until we got all available information, that we acted independently, indeed we thought that we had a statutory mandate" to act on safety issues.

In their letter to the judge, prosecutors said they had learned of Ms. Martin's contacts with Ms. Osmus on Friday and then called the other six government aviation witnesses.

Judge Brinkema described Ms. Martin's role as supervising the government aviation witnesses and coordinating their appearances.

Mr. Moussaoui sat quietly on the side of the courtroom as the lawyers argued. But as he exited the courtroom, he shouted, "The show must go on."