Government seeks reversal of Moussaoui evidence ruling |

Government seeks reversal of Moussaoui evidence ruling

ALEXANDRIA, Va. – Prosecutors asked a judge Wednesday to reconsider her decision to toss out half of the government’s case against confessed terrorist Zacarias Moussaoui. They acknowledged that altering the judge’s ruling is their only hope of salvaging the death-penalty case.In a motion filed with U.S. District Judge Leonie Brinkema, prosecutors said the aviation security evidence she barred because a government lawyer coached the witnesses “goes to the very core of our theory of the case.”At the very least, the prosecutors argued they should be allowed to present a newly designated aviation security witness who had no contact with the offending lawyer, Carla J. Martin of the Transportation Security Administration. They said this would “allow us to present our complete theory of the case, albeit in imperfect form.””The public has a strong interest in seeing and hearing it (aviation security evidence), and the court should not eliminate it from the case, particularly not … where other remedies are available,” they wrote Brinkema.There was no immediate response from the judge, but she had indicated late Tuesday that she had time available Thursday to consider such a motion if it were made.The only person charged in this country with the Sept. 11, 2001, attacks, Moussaoui pleaded guilty last April to conspiring with al-Qaida to fly airplanes into U.S. buildings. But he denies any involvement in 9/11, saying he was training for a possible future attack.The sentencing trial that began last week will determine whether he is executed or spends life in prison without possibility of release. Brinkema has delayed the trial until Monday while prosecutors appeal.Prosecutors argued the sanctions imposed Tuesday were unnecessarily severe. The judge barred several key witnesses from testifying as punishment for the government’s misconduct.Brinkema’s sanctions make it “impossible for us to present our theory of the case to the jury,” the prosecutors said, adding that the barred testimony “is one of the two essential and interconnected components of our case.”They also emphasized that six witnesses improperly coached by Martin testified at an evidentiary hearing Tuesday that their testimony would not be influenced by her actions.The aviation security evidence was one of two parts of the prosecution’s case: offensive and defensive measures they argue the government would have taken if Moussaoui had not lied to FBI agents about his terrorist connections when arrested in Minnesota three weeks before al-Qaida’s attack on the World Trade Center and the Pentagon.They say these measures combined would have prevented at least one death that day on which nearly 3,000 were killed as three hijacked jetliners were flown into the buildings and a fourth crashed in a field in Pennsylvania. This is crucial to the government case because to get a death penalty prosecutors must show an action of Moussaoui’s – his lies, in this case – led directly to at least one death on 9/11.Prosecutors remain free to enter the offensive steps they believe the FBI would have taken in those three weeks to locate 9/11 hijackers in this country.But Brinkema barred them from presenting witnesses or exhibits about what defensive steps federal aviation officials might have taken to enhance airport security during that period. She said Martin’s misconduct while acting as liaison between prosecutors and seven prosecution and defense aviation witnesses had left that segment of the case “irremediably contaminated.”In their compromise proposal, prosecutors suggested they would drop efforts to argue the Federal Aviation Administration would have barred small knives, like those used by the hijackers, from planes and would have altered its terrorist screening profiles to catch the terrorists.Instead, they would call one witness, whom they did not identify, who worked at the FAA in August 2001 and could discuss the government’s use of “no-fly” lists to bar specific, named terrorists from planes and how those lists evolved over the years.Prosecutors have acknowledged they may have no viable case if Brinkema’s ruling stands.”We don’t know whether it is worth us proceeding at all, candidly, under the ruling you made today,” Assistant U.S. Attorney Rob Spencer said in an unusually blunt assessment during a conference call Tuesday. Spencer went on to say that resuming the trial under these conditions would “waste the jury’s time and the court’s time, and we’re all mindful of the expense of this proceeding.”If Brinkema refuses to revise her ruling, it’s not clear what appeal avenues remain open. Defense attorney Edward MacMahon said the government can’t appeal Brinkema’s ruling to the 4th U.S. Circuit Court of Appeals in Richmond now that the trial is under way.”We don’t think the government has any appellate rights under” federal law, MacMahon said during Tuesday’s conference call.Martin coached witnesses on their testimony, sent them trial transcripts that she urged them to read and warned them to be prepared for certain topics on cross-examination.That violated trial rules preventing witnesses from being exposed to trial proceedings so that they do not alter their testimony based on what they learn. She also misrepresented to defense lawyers that witnesses they wanted to call weren’t willing to talk with them before trial.Carl Tobias, a law professor at the University of Richmond, said prosecutors might ask the appeals court for a rarely used common law relief order called a writ of mandamus, but Tobias said such orders are granted only in extraordinary circumstances.Eric Holder, a former deputy attorney general, said in an interview Wednesday he expected prosecutors to exhaust all options pursuing the case. “Agree or disagree with the decision to seek death, once you have committed to that course of action, you have to do all that you can to obtain that ultimate punishment.”—On the Net:Court’s Moussaoui site:, Colorado

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