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.
Does anyone have a picture of this dudess, Carla?
One wonders if this was not done on purpose to screw up the Death Penalty portion of this trial. No one can be this stupid, except Bill Clinton.
I agree entirely. Had the perp's lawyer done something similar, they would have been screaming for dozens of additional charges for witness tampering.
I believe in due process, regardless of the crime. Bad precedents will apply to everyone.
Did the 3 testify??
And what exactly was in the email and why would this attorney do that?
Brinkema is a Clinton appointee.
Brinkema's biggest claim to fame is being overtunrned on a case in Virginia. She erroneously stated that people have the right to pornography in libraries and that filters which limit porn in libraries are an illegal infringement of free speech. Brinkema was unanimously overturned on that one.
She also freed an "alleged" Virgina Jihadist. I couldn't get the details, but it appears he was guilty.
Three things from a Clinton appointee.
1. The decisions will be politically motivated.
2. Expect pornography to be legal and killers not to get the death penalty.
3. Expect that if it makes Bush look bad, (no matter how may American soldiers die) it will happen.
This is a pretty serious screw up. I'm not a lawyer, but have been in law enforcement for over 20 years and have testified many, many trials, criminal, civil, and Family. Witness rules are pretty simple, and this lawyer has screwed the American People.
Meanwhile the former supreme court justice 'conner rails against criticism of f-ing judges.
F-ing unAmerican judges. Why not just turn the whole country over to the lunatics? Oh yeah we have it's called the congress.
A few judges need to be drug out into the street and beaten.
Dead-on analyst. I agree completely.
"In the alternative, he said, at least she should excuse the government's FAA witnesses from the case."
The judge could bar the offending lawyer and the tainted witnesses from the trial. Right now, dismissal of the death penalty as a potential sentence is entirely a pipe dream of the defense lawyer, who is ethically obligated to maximize the benefit to his client. However, judges have pretty broad discretion in sanctioning this kind of conduct.
Cornell law degree, Clinton appointee.
Stupid attorney could cause a terrorist to be set free because half the case can not be presented? SHE needs to be tried! For stupidity.
One thing that's been unclear - did the witnessess the TSA attorney allegedly coached testify in the criminal trial, or only in the penalty phase? Because if they testified at trial, that might get the entire conviction tossed on appeal.
Uday and Qusay were the model for how to handle these folks, this guy shouldn't have even shown up on radar ... and Saddam should have been dead before he made it out of his hole.
It appears the alleged tampering occurred after the merits phase, so I do not think the whole case could be tossed. However, whatever the merits of this particular judge, ANY judge is going to get mighty upset if one of his or her orders is ignored or willfully violated in a high profile case. This was beyond stupid by the attorney involved and I hope she gets severly sanctioned.
At the least, I think it would be quite approprite for the judge to yank her law license pending review by the Bar.
Of course that won't happen. She is a government lawyer.
Its not the judge's fault, its the Justice Department who screwed up.
1. I'm more familiar with the option to bar witnesses from hearing other parts of the trial in civil cases, but obviously in this criminal case the judge issued a direct order to that effect. The parties knew that and were bound to follow the order.
2. This is a death penalty case and the judge is supposed to be totally neutral - not care what the outcome is. She is right to consider her options, and to take the violation of her order seriously.
3. The judge has among her options giving the jurors an instruction regarding the government's misconduct. Still, I am concerned if the article is correct and she has already disparaged the government to the jury. She has many options, including barring the witnesses, giving the jurors an instruction, and/or letting the defense counsel question the witnesses about this in front of the jury. I don't like what she told the jury at first blush, but frankly she was likely to do that after further consideration in any event.
4. Maybe I'm not speaking as an attorney now, but knowing who and what Moussaui is, it sickens me to hear the judge screaming about his constitutional rights.
5. 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. If so it's a major screw up but not an effort to interfere with the trial.
6. I think under the circumstances the government should have agreed to exclude the witnesses. The jurors know what the defendant did and they are either going to sentence him to death or not.
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