The federal judge in the death penalty trial of al-Qaida conspirator Zacarias Moussaoui accepted a government compromise Friday that will allow prosecutors to present new witnesses about aviation security.
Judge Leonie Brinkema in a written order said prosecutors could present exhibits and a witness or witnesses if they are untainted by contact with Transportation Security Administration lawyer Carla J. Martin, cited by Brinkema for misconduct earlier this week when the judge decided to exclude all aviation security evidence.
“The government’s proposed alternative remedy of allowing it to call untainted aviation witnesses or otherwise produce evidence not tainted by Ms. Martin has merit,” Brinkema wrote.
Her partial reversal of an earlier order was a boon to prosecutors who had said it would be a waste of time to continue the case if they were not allowed to present some evidence about possible defensive aviation security measures the government might have taken to prevent the Sept. 11, 2001, attacks on the World Trade Center and the Pentagon.
Defense lawyers had argued Thursday that Brinkema was fully justified in concluding that evidence about U.S. aviation security was tainted beyond repair.
Moussaoui’s lawyers also had said that there was no reason for her to agree to a request by prosecutors on Wednesday that she revoke her order or at least impose less severe penalties on the government.
The Justice Department issued a statement Friday in response to Brinkema’s compromise, saying, “We are pleased to be able to move forward with this important case on behalf of the thousands of victims and their families.”
Jury dismissed until Monday
Brinkema had sent the jury home until Monday while she decided what to do.
The only person charged in this country in the Sept. 11 attacks, Moussaoui pleaded guilty in April to conspiring with al-Qaida. But he says he had nothing to do with 9/11 and was training for a possible later attack.
To obtain a death penalty, prosecutors must prove that Moussaoui’s actions — his lies, in this case — led directly to at least one death on Sept. 11, 2001.
Martin’s lawyer, Roscoe Howard, said Thursday she had been “viciously vilified by assertions from the prosecution” and is preparing a response he said “will show a very different, full picture of her intentions, her conduct and her tireless dedication to a fair trial.”
Meanwhile, in New York, lawyers representing plaintiffs in a liability lawsuit stemming from the Sept. 11, 2001 attacks have asked a judge there to conduct an inquiry into whether Martin, or any other TSA lawyers, engaged in witness tampering or other acts to favor American Airlines and United Airlines, defendants in the case.
One of the airline lawyers forwarded a transcript from the first day of the trial to Martin, the victims’ lawyers, Robert Clifford and Gregory Joseph, claim.
American Airlines’ attorneys said they hadn’t communicated directly with Martin or other TSA lawyers about the Moussaoui trial.
Martin forwarded that day’s transcript to seven federal aviation officials scheduled to testify later in the sentencing trial of the 37-year-old Frenchman, in violation of an order by Brinkema.
Martin’s e-mailing of the transcript and her efforts to shape their testimony prompted Brinkema to toss out half the government’s case against Moussaoui as contaminated beyond repair.
The contacts between Martin and lawyers for United Air Lines and American Airlines were detailed in a legal brief filed on Moussaoui’s behalf Thursday. That brief contained a March 15 letter from Clifford and Joseph complaining about Martin’s actions to U.S. District Judge Alvin Hellerstein, who is presiding over the civil damage case in New York.
They wrote Hellerstein that the government’s opening statement in the Moussaoui case “took the position that the hijackings were completely preventable and that gate security measures could have been implemented to prevent the 9/11 hijackers from boarding the planes had security been on the lookout for short-bladed knives and boxcutters.”
“This stands in stark contrast to the position that has been repeatedly articulated by counsel to the aviation defendants in the September 11 actions.”
Because that government position could have “devastating” impact on the airlines’ defense in the civil suit, American Airlines’ lawyer forwarded the transcript to a United Air Lines lawyer who forwarded it to Martin, Clifford and Joseph wrote. As proof, they cited March 7 e-mails that they provided to Hellerstein but which were not immediately available here.
“The TSA lawyer then forwarded the transcripts and sent multiple e-mails to government witnesses in a clear effort to shape their testimony in a manner that would be beneficial to the aviation defendants” in the civil suit, they wrote.
They then quoted a March 8 e-mail Martin sent to one of the government’s Moussaoui witnesses that said:
“My friends Jeff Ellis and Chris Christenson, NY lawyers rep. UAL and AAL respectively in the 9/11 civil litigation ... all of us aviation lawyers, were stunned by the opening. The opening has created a credibility gap that the defense can drive a truck through. There is no way anyone could say that the carriers could have prevented all short-bladed knives from going through — (Prosecutor) Dave (Novak) MUST elicit that from you and the airline witnesses on direct....”
Clifford and Joseph said the developments represent “far more than appearance of impropriety” and asked Hellerstein to investigate “the mutual back-scratching relationship that appears to exist between the (airline) defendants and the TSA.”
Asked about the allegations by Clifford and Joseph, United spokeswoman Robin Urbanski said, “Our actions have been entirely appropriate as have those of our outside counsel.”
In a letter dated Thursday to Hellerstein, American Airlines’ attorneys Desmond Barry and Roger Podesta wrote that “There have been no communications between any counsel for American Airlines and Carla Martin or anyone else at the TSA regarding the Moussaoui trial.”
Further, they wrote, “Mr. Christensen has had no communications with Ms. Martin on the subject of the Moussaoui trial and no communications with Ms. Martin on any subject at all in approximately one year.”
Contacted after midnight, Martin’s attorney, Roscoe Howard, said he had not heard of the New York lawsuit or the letter from Clifford and Joseph. “I’ll have to ask her about it,” he said, declining to comment further.
TSA spokeswoman Yolanda Clark said she was unfamiliar with the allegations made by Clifford and Joseph.
Earlier Thursday, Clark confirmed that TSA had put Martin on administrative leave.