Prosecutors asked a judge Wednesday to reconsider her decision to toss out half of the government’s case against confessed terrorist Zacarias Moussaoui. They acknowledged that altering the judge’s ruling is their only hope of salvaging the death-penalty case.
In a motion filed with U.S. District Judge Leonie Brinkema, prosecutors said the aviation security evidence she barred because a government lawyer coached the witnesses “goes to the very core of our theory of the case.”
At the very least, the prosecutors argued they should be allowed to present a newly designated aviation security witness who had no contact with the offending lawyer. They said this would “allow us to present our complete theory of the case, albeit in imperfect form.”
“The public has a strong interest in seeing and hearing it (aviation security evidence), and the court should not eliminate it from the case, particularly not ... where other remedies are available,” they wrote Brinkema.
There was no immediate response from the judge, but she had indicated late Tuesday that she had time available Thursday to consider such a motion if it were made.
Punishing the government
Prosecutors argued the sanctions imposed Tuesday were unnecessarily severe. The judge barred several key witnesses from testifying as punishment for the government’s misconduct.
Brinkema’s sanctions make it “impossible for us to present our theory of the case to the jury,” the prosecutors said, adding that the barred testimony “is one of the two essential and interconnected components of our case.”
They also emphasized that all the witnesses improperly coached by Transportation Security Administration lawyer Carla Martin testified at an evidentiary hearing Tuesday that their testimony would not be influenced by her actions.
The government’s case is teetering following the disclosure that Martin violated trial rules by sending witnesses 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.
Death or life in prison
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 considered 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.
Trial already four years in the making
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.