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.
I can live with Moussaoui getting life in prison. BUT, only if Carla Martin receives the death penalty.
Seems there is a conspiracy in that Able Danger discovery.
Tx Former, we "old timers" have to stick together.
Very interesting. Thanks for the ping.
Government's Opposition to Defendant's Motion ...
http://notablecases.vaed.uscourts.gov/1:01-cr-00455/docs/71842/0.pdf
Text of e-mails from Carla Martin, Senior Trial Attorney for TSA...
http://www.scotusblog.com/movabletype/archives/moussaouifiles.pdf
http://www.scotusblog.com/movabletype/archives/2006/03/moussaoui_lawye.html
Are there FReepers who are also lawyers, and who might be able to shed some light on the legal ramifications of this mess?
Click on the scotusblog link for a fair summary. Still unfolding.
... Counsel stated that Carla Martin, an FAA "department head," in a telephone conversation told him that, in similar circumstances, the FAA had consented to the disclosure of a security directive to counsel for a party in litigation. Consent to disclose the security directive to Kalantar or to his attorney would be withheld in this case, however. Defense counsel explained that Kalantar and his attorney are "involved in advocacy groups for Iranians fighting discrimination" and have a connection with a pro-Iranian website discussing supposed discrimination against Iranians in various forums including the airline industry and specifically by Lufthansa. Hr'g Tr. at 24-25. 3
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3 According, to defendants' counsel, Ms. Martin also stated said that the FAA had permitted disclosure of security directives in similar cases to a party's attorney because, unlike in this case, the attorney "[did] not appear to be emotionally or otherwise involved in the issue. And she felt that in those cases there wouldn't be a threat to the information being disseminated." Hr'g Tr. at 25.
Stephen J. McHale, Deputy Under Secretary, Transportation Security Administration, United States Department of Transportation, in a declaration appended to the United States' Statement of Interest states the following:
While it is true that in the past the predecessor of the TSA, the Federal Aviation Administration's Office of Civil Aviation Security, in conjunction with the Chief Counsel's office, made accommodations in federal court litigation that allowed air carrier counsel to provide SSI to opposing counsel pursuant to a strictly controlled confidentiality order, the TSA is unwilling to make any exceptions to the need-to- know category at the present time. This is due in no small part because of recent intelligence reporting that al-Qaeda militants had obtained access, through media sources and publicly available U.S. Government reports, to information concerning security vulnerabilities at American airports. While we do not know what part such information may have played in the decision to use U.S. civil airliners in the attacks on September 11 , we cannot discount the possibility at this time that SSI provided to those outside the operational need-to-know categorycould be exploited to further terrorist objectives and put the the public at greater risk.
United States' Statement of Interest, Ex. A ¶ 10 (Decl. of S. McHale).
But Double Jeopardy would not seem applicable here.
DOUBLE JEOPARDY - Being tried twice for the same offense; prohibited by the 5th Amendment to the U.S. Constitution. '[T]he Double Jeopardy Clause protects against three distinct abuses: [1] a second prosecution for the same offense after acquittal; [2] a second prosecution for the same offense after conviction; and [3] multiple punishments for the same offense.' U.S. v. Halper, 490 U.S. 435, 440 (1989).
(lectlaw.com)
When she specifically (and correctly) tells the prosecution not to coach witnesses, and then the prosecution willfully does exactly that, her ideology is not the issue (IMHO). I think who appointed her to the bench is, in this case, a convenient dodge for accepting the reality that the prosecution royally screwed up.
The guy is still guilty. Nothing can or will change that.
IMHO it has been decided at the highest level(s) of the US government Moussaoui alive is more important than Moussaoui dead.
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