Posted on 03/13/2006 10:30:42 AM PST by Wolfstar
ALEXANDRIA, Va. - An angry federal judge considered Monday whether to dismiss the government's death penalty case against confessed al-Qaida conspirator Zacarias Moussaoui after a federal attorney coached witnesses in violation of her rules.
"I do not want to act precipitously," U.S. District Judge Leonie Brinkema said in scheduling a special hearing on the case Tuesday, but she said that it was "very difficult for this case to go forward."
Brinkema said a lawyer for the Transportation Security Administration sent e-mail to seven Federal Aviation Administration officials outlining the prosecution's opening statements and providing commentary on government witnesses from the first day of testimony. That was in violation of her pretrial order barring witnesses from exposure to any opening statements or trial testimony.
"An attorney for the TSA ... egregiously breached that order," she told jurors before excusing them until Wednesday. Of the seven, three were to testify for the government and four were potential defense witnesses.
Government officials identified the attorney as Carla Martin.
Brinkema wanted to hear Tuesday from the seven and from the attorney who contacted them to help her decide whether to throw out the government's case. If she does, Moussaoui would escape the possibility of execution and be sentenced to life in prison without chance of parole.
She said the rule against witnesses hearing testimony in advance is "a very important protection of the truth-seeking process."
Moussaoui appeared bemused as the lawyers debated how to proceed. Leaving the courtroom, he said, "The show must go on."
The stunning development came at the opening of the fifth day of the trial after the government informed the judge and the defense over the weekend of the attorney's contact.
"This is the second significant error by the government affecting the constitutional rights of this defendant and more importantly the integrity of the criminal justice system of the United States in the context of a death case," Brinkema told lawyers outside the presence of the jury.
Defense attorney Edward MacMahon moved to have the judge dismiss the death penalty as a possible outcome, saying "this is not going to be a fair trial." In the alternative, he said, at least she should excuse the government's FAA witnesses from the case.
Prosecutor David Novak replied that removing the FAA witnesses would "exclude half the government's case." Novak suggested instead that the problem could be fixed by a vigorous cross-examination by the defense.
But Brinkema said she would need time to study what to do.
"In all the years I've been on the bench, I have never seen such an egregious violation of a rule on witnesses," she said.
If it was a DOJ lawyer that had done that, dismissal and barring double retrial might be appropriate. Since it was an agency attorney, that would probably not be justified.
(The attorney should be introduced to the concept of contempt of court, and the top lawyer at the agency should probably be dragged in and chewed out as to the need for competent, well trained attorneys in the agency.)
It would probably be appropriate to bar all agency lawyers from the trial.
Thanks for info on the judge. That's why I hope a FReeper who happens to be an attorney can help us out here. Were the judge's initial restrictions unreasonable, or did the TSA attorney screw the pooch?
Understood. The article indicates she may dismiss the case, presumably meaning the death penalty phase of the case.
I agree. One wonders, however, if the lawyer did this deliberately to sabotage the death penalty case.
It stinks that this lawyer made a boneheaded move. I hope the judge issues sanctions against Carla Martin. If the prosecution had a problem with the judge's pre-trial order, the time to fight it was *before* the trial starts.
MJ
The laywer who screwed up is from TSA, not Justice.
Absolutely. It's hard for me to imagine the lawyer did this accidentally.
The judge makes the decision to have witnesses sequestered (usually based on a request from either the prosecutor or the defense). The judge (referred to as "the court") makes the rules, but this rule is not uncommon and has been the case in most trials.
Let him go, then see to it that he joins the ranks of the "desaparecidos."
I didn't say it didn't matter that they broke the rules, I said that this rule violation hardly seems to compromise the integrity of the trial.
As to coaching, ethical or not, there isn't an atty alive who puts a witness on the stand cold. The ATTY himself may not tell the witness directly, use this word or that word... but they certainly will find a surrogate to do it for them if they feel the need.
If we're lucky, he'll be shot trying to escape.
...maybe the lawyer is a moonbat and did it intentionally, after all it is NYC.
OK stop picking your toes, you got mail. Sorry but you are one of those that can not make it there.
Excellent question. Unfortunately, like you, I can only go by what's in the media report(s).
I could not agree with you more, especially about Saddam.
Thank you. I was hoping to obtain the insights of a least one attorney on this thread.
Still, I am concerned if the article is correct and she has already disparaged the government to the jury.
I'm not an attorney, but this worried me, too.
I wonder if the attorney who sent this to the witnesses was not involved in the trial, and screwed up because they didn't realize the order existed.
I had not thought of this possibility. If this is the case, why would she involve herself in any way? This is a rhetorical question, obviously, but her actions seem so odd no matter how I look at the matter.
DMZ, before you go off on people, it might be helpful if you take a moment to absorb the facts in the article. The lawyer who screwed up is not from Justice, but from TSA.
It's not Clinton's fault, but neither is it Bush's fault. In fact, the only person at fault here is the attorney in question.
If I recall correctly, he is not a citizen. However, he is being tried in our civilian courts and is therefore being accorded the same rights as other defendants. (Unfortunately.)
The TSA attorney screwed the pooch. As I posted in an earlier thread about this matter, not only were the judge's restrictions reasonable, the Rule on Witnesses is mandatory if one of the parties asks for it: See Federal Rule of Evidence 615 which reads
Rule 615. Exclusion of Witnesses
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present.
There's just no excuse for what happened here, and we might literally all have to pay the cost of one government attorney's stupidity and/or arrogance for the rest of the defendant's natural life.
According to the article, the lawyer who did it is from the TSA. It's unclear if the TSA lawyer was on the prosecution team. From the article:
Brinkema said a lawyer for the Transportation Security Administration sent e-mail to seven Federal Aviation Administration officials outlining the prosecution's opening statements and providing commentary on government witnesses from the first day of testimony.
Thanks. Every insight by an attorney posted on this thread is helpful -- to me, at least.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.