Posted on 03/15/2006 2:57:59 PM PST by NormsRevenge
ALEXANDRIA, Va. - Prosecutors acknowledge their only hope of salvaging the death-penalty case against confessed terrorist Zacarias Moussaoui is to reverse a judge's ruling barring key witnesses from testifying. But the government's avenues of appeal may be limited.
Assistant U.S. Attorney Rob Spencer told U.S. District Judge Leonie Brinkema it would be a waste of time for the government to proceed if her ruling, which tossed out half of the government's case, is allowed to stand.
"We don't know whether it is worth us proceeding at all, candidly, under the ruling you made today," Spencer said in an unusually blunt assessment of the government's prospects during a conference call Tuesday. Transcripts of the call were made public Wednesday. "Because without some relief, frankly, I think that there's no point for us to go forward."
Spencer went on to say that resuming the trial under the current conditions would "waste the jury's time and the court's time, and we're all mindful of the expense of this proceeding. ... We ought just to weigh our rights for reconsideration or our appellate rights."
It's not clear, though, what appeal avenues are open to the government. Defense attorney Edward MacMahon said during the call that 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 the call.
But there appears to be no dispute that prosecutors can ask Brinkema to reconsider her order. And she told them her schedule would permit that on Thursday.
The government's case is teetering following the disclosure that a federal lawyer, Carla Martin, violated trial rules by coaching witnesses on their testimony, sending them trial transcripts that she urged them to read, and warning them to be prepared for certain topics on cross-examination.
She also misrepresented to defense lawyers that witnesses they wanted to call weren't willing to talk with them before trial.
Federal rules of evidence prohibit witnesses from exposure to trial testimony because of the possibility they will alter their testimony based on what they learn.
Moussaoui is the only person charged in this country with the Sept. 11, 2001 attacks. He pleaded guilty in April to conspiring with al-Qaida to hijack aircraft and other crimes, 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 Moussaoui's punishment: death or life in prison. Brinkema delayed the trial until Monday while prosecutors consider an appeal.
The three government witnesses struck from the case were all current or former employees of the Federal Aviation Administration. They were expected to testify that they would have issued alerts and implemented security measures at airports if Moussaoui had revealed his al-Qaida membership and the true intent of his flight training when he was arrested and interrogated by federal agents in August 2001. Moussaoui lied to federal agents after his arrest and led them on what one FBI agent called "wild goose chases."
The aviation witnesses are key because, to obtain the death penalty, the government must prove that Moussaoui's actions directly resulted in at least one death on Sept. 11.
Carl Tobias, a law professor at the University of Richmond, said that on its face, the federal statute governing prosecutorial appeals does not allow the government to appeal midtrial because it would violate a defendant's constitutional protections against being tried twice for the same crime.
But he said the issue is not clear cut. As a practical matter, he thought prosecutors might have more luck asking Brinkema to reconsider her ruling rather than appealing to the 4th Circuit, which could prompt another long delay of a trial that has been more than four years in the making.
But Eric Holder, a former deputy attorney general, thought the appellate court in Richmond could act swiftly in a case of this significance.
"Given ... what is at stake both in terms of defendant's life and what this trial means to this nation, I think an appellate court could and should move a lot faster than they are used to," Holder said in a telephone interview Wednesday.
He expected prosecutors would exhaust all options in 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," he said.
Prosecutors successfully overturned an unfavorable ruling from Brinkema in 2004. The 4th Circuit overruled her decision to exclude the death penalty then as a sanction for the government's refusal to allow defense access to key al-Qaida witnesses in U.S. custody.
___
On the Net:
Court's Moussaoui site: http://www.vaed.uscourts.gov/notablecases/moussaoui/index.html
Believe me - we can be. She probably just never thought she'd be caught.
No, this is what happens when prosecutors unnecessarily try to circumvent the rules regarding witnesses.
Stupid is a given. The only thing in doubt is what she was stupid enough to do, break the rules or take a payoff.
She also misrepresented to defense lawyers that witnesses they wanted to call weren't willing to talk with them before trial.
Federal rules of evidence prohibit witnesses from exposure to trial testimony because of the possibility they will alter their testimony based on what they learn.
From you:
You have to wonder why in the world an attorney, who should know the procedures, would do such a stupid thing in such a high-profile case.
Has anyone investigated the idea that Carla Martin was DELIBERATELY trying to throw the case? What are her connections?
It was a serious error and she is very upset, probably for life. Doesn't change the legal fact. It's actually worse than letting the winning ground ball out go through your legs in the World Series.
Makes no difference, really. There isn't a big difference between lawyers from the top schools and those from most of the rest of the schools.
If all I knew about two lawyers was that one was a Yale Law School grad and one was from Rutgers Law, and I had to choose one, I'd just flip a coin.
"More importantly, why does Carla Martin still have a job in the U.S. Justice Department?"
Not to put too fine a point on it, but...If what I read in the news is even partially true, Ms. Martin does not [did not?] work for the U.S. DOJ. She works for TSA [the airport screener people] which is a subdivision of the Dept. of Homeland Security. Need anymore be said?
I have this feeling that Carla's in for a career change...
Carla Martin isn't with the DoJ, and best as I am aware never has been. She is with the TSA.
She was an attorney with the FAA beginning in 1987, and she was the FAA's attorney at the the 1992 Pan Am 103 trial.
This is a screwup, but it happens.
"confessed terrorist Zacarias Moussaoui"
He confessed and they still cannot do it what a joke.
Bet the losing government lawyers will get benefits and perks and retirment like OJ's did as well.
They work so hard to lose you know.
Once again:
This trial is a farce and a perversion of both our Constitution and our civil laws.
ZM is not guilty of any crimes, certainly not of any capital offenses.
What he is, is an enemy soldier, caught behind our lines and out of uniform. As such, he does not fall under the purview of the various Geneva Conventions.
Dealing with him is not the job of the Justice Department, nor is it the job of the Judicial Branch.
He should be killed by our armed forces, either summarily or after a tribunal hearing (not a trial).
He should have been put up against a wall on Rector Street in lower Manhattan and shot at sunrise on 9/12/01.
Everything that has happened to him since then is a sign of craven weakness and terminal stupidity.
Once again:
This trial is a farce and a perversion of both our Constitution and our civil laws.
ZM is not guilty of any crimes, certainly not of any capital offenses.
What he is, is an enemy soldier, caught behind our lines and out of uniform. As such, he does not fall under the purview of the various Geneva Conventions.
Dealing with him is not the job of the Justice Department, nor is it the job of the Judicial Branch.
He should be killed by our armed forces, either summarily or after a tribunal hearing (not a trial).
He should have been put up against a wall on Rector Street in lower Manhattan and shot at sunrise on 9/12/01.
Everything that has happened to him since then is a sign of craven weakness and terminal stupidity.
She doesn't. She's with the TSA -- or was when she did this stupid deed. She also is not part of the prosecution team, but sat in on the trial as a representative of the TSA.
I find it very very very difficult to believe that a lawyer of any caliber would commit witness tampering or coaching "accidentally"
there MUST be something behind it, but enucleate my eyes if i know what.
I don't know. She may have thought she was helping the case. The law is pretty clear on this.
Just turn him loose at a designated point at a specified time in a state where folks have full Second Amendment rights, and the people will do that which the government is incapable of doing.
In any system of justice with competent counsel, Moussouie would be in his grave by now.
So, if you want to start getting rid of lawyers, Carla is not the only one to tag.
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