updated 3/16/2006 7:55:55 PM ET 2006-03-17T00:55:55

A judge was well within her rights to toss out half the prosecution’s death-penalty case against confessed al-Qaida terrorist Zacarias Moussaoui in response to government misconduct, defense lawyers argued Thursday.

Moussaoui’s lawyers said there was no reason for U.S. District Judge Leonie Brinkema to reconsider her ruling excluding what she called contaminated evidence about U.S. aviation security measures.

On Wednesday, prosecutors asked her to reconsider. They have said it would be waste of time to proceed with the sentencing trial unless they are allowed to present some of the aviation evidence.

There was no indication when, or if, Brinkema would respond.

Brinkema issued sanctions after finding that a Transportation Security Administration lawyer, Carla J. Martin, violated trial rules by coaching witnesses on their testimony, exposing them to trial transcripts and warning them to be prepared for certain topics on cross-examination. She also lied to defense attorneys to prevent them from doing pretrial interviews with several aviation officials they wanted to call as witnesses, the judge found.

Violated federal rules
Federal rules of evidence prohibit witnesses from hearing or reading trial testimony because of the possibility they will alter their testimony based on what they learn.

On Tuesday Brinkema ruled that the government cannot present any testimony about how it would have modified aviation security to counter the threat posed by Moussaoui and his al-Qaida coconspirators, who were training to hijack aircraft and fly them into U.S. buildings. The plans culminated in the Sept. 11, 2001, attacks on the World Trade Center and Pentagon.

Prosecutors have said the testimony is crucial to their case. They argue that if Moussaoui had revealed his al-Qaida membership and his plans for a terrorist attack when he was arrested in August, 2001, the FBI could have identified some of the hijackers and aviation officials could have taken steps to prevent at least one of the nearly 3,000 deaths on 9/11.

The only person charged in this country in connection with the Sept. 11 attacks, Moussaoui has already pleaded guilty to conspiring with al-Qaida. But to obtain a death penalty verdict, prosecutors must prove that Moussaoui’s actions led directly to at least one death on Sept. 11. Moussaoui has said he had nothing to do with 9/11 and was training for a possible future attack.

Prosecutors argue that the government aviation officials who dealt with Martin should be allowed to testify because six of the seven have said under oath that Martin’s exhortations would not affect their testimony.

At the very least, prosecutors asked the judge to allow a witness who was not exposed to Martin’s misconduct to testify in place of those witnesses who have been barred.

Substitutions would be unfair, defense says
But defense lawyers say such a substitution would be unfair because federal law requires the government to disclose all its witnesses three days before trial so the defense can be prepared. That law goes back to 1790, the defense said.

“The Supreme Court has held that this ancient and unexceptional backbone of capital jurisprudence in the federal courts is mandatory,” the defense team wrote in its brief.

Moussaoui’s trial began March 6. Brinkema halted the trial Monday after learning of Martin’s actions.

Further, the defense said any substitute witness would almost surely still be tainted — not by Martin’s actions but by exposure to media accounts describing the trial testimony and the ongoing controversy.

The defense also argued that the full extent of Martin’s misconduct is not known. Martin invoked her right to an attorney and declined to testify at a special evidentiary hearing Tuesday to determine the effect of her actions.

The defense said in its brief that Martin’s actions ought to result in criminal witness tampering charges.

Martin has been placed on administrative leave from her TSA job, an agency spokeswoman said.

Martin’s lawyer, Roscoe Howard, said Thursday she had been “viciously vilified by assertions from the prosecution and assorted media pundits.” His client is preparing a response that Howard said “will show a very different, full picture of her intentions, her conduct and her tireless dedication to a fair trial.”

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