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
No, you really don't. It is all quite optional.
How much more of YOUR & MY money do they want to take next yr in order to become that much more inefficient?
Yessserrreeee!!!
I so agree with you. Can you say FURIOUS? These murdering scum are given so much protection by the stinking liberals that it is beyond belief. Why be surprised since it was their indifference to terrorism that led to 911, and if we can't stop them, it will happen again and again!
Seems to me one of the judges options is to declare it a mistrial. Start over.
OK fine, so why does she still have a job in the TSA?
Same deal. Why does she still have a job with the TSA?
She is what we in the legal biz call 'the doghouse.' A person can go from doghouse to penthouse several times in the course of a long case, or even a long day.
In this case, I'd say she is so deep in the doghouse she should just quit. Or else termination is likely.
@!#@+&*@%^!!!
Is she really stupid, or does she have another agenda? Who does she really work for and represent, I wonder? I can't believe she's that stupid. Crazy like a fox, maybe.
I think you comment is the best I have read of her situation, thx.
ZM was given the protection of the US civil courts by George W. Bush and John Ashcroft, and no one else.
Thanks. I try and keep it down to earth. It's what's called in the legal biz 'a screwup.' Just happened on a huge case with international attention. I never screwed up so bad in law, but I cut her some slack.
Just some. She has no future where she is, now. 'The doghouse.'
Those would be individual rights. Probably not to important to you until you're accused, and not guilty.
he's pled guilty
isn't this just over sentencing?
he's pled guilty
isn't this just over sentencing?
--
Correct.
I agree. See my post #14
The Justice Department moved swiftly on Wednesday to try to salvage a crucial part of its death penalty case against Zacarias Moussaoui, the only individual charged in the U.S. with a crime growing out of the Sept. 11, 2001, terrorist attacks. The Department asked a federal judge in Alexandria, Va., to reconsider her ruling on Tuesday barring a significant array of testimony and evidence the government had planned to offer to bolster its death sentence request. The motion can be found here. The motion argued that the Court's order "is terribly excessive" and "is patently disproportionate to the prejudice that the defendant [Moussaoui] could conceivably have suffered in this case." It urged the judge to reconsider the entire order, or at least to "narrow it substantially." ...http://www.scotusblog.com/movabletype/archives/2006/03/government_move.html
This may seem like a stupid question, but did that actually happen.
The folks who sent him to clip Oswald had plenty of reasons to want him dead. He wanted to testify (but only in Washington where he thought he would be "safe".)
He DID die of cancer in a fairly short time after being incarcerated.
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